Lasting Powers of Attorney documents allow the Donor of the Power to place restrictions on his Attorneys as to both when and how the Lasting Power of Attorney can be used. These restrictions are useful in allowing the Donor some control over what his Attorneys can and cannot do. However, too many restrictions can make it difficult for the Attorneys to utilise the Lasting Power of Attorney as intended.
In the case of Re XZ, the Court considered whether the Court of Protection was right to refuse to register a Lasting Power of Attorney which contained extensive restrictions and made it almost impossible for the Attorneys to exercise the powers they had been given under the document. Among other restrictions, the Donor required that an extensive and lengthy process be followed which involved several psychiatric opinions as to his capacity being obtained and then verified prior to his Attorneys being able to exercise their powers in relation to each decision or action they wished to undertake on the Donor’s behalf. The Office of the Public Guardian refused to register the Lasting Power of Attorney on the basis it was too restrictive and in effect defeated the object of appointing Attorneys.
The Court of Protection ruled that the Office of the Public Guardian had no right to make a ‘paternalistic judgement’ on behalf of the Donor and stated that a Donor should be allowed to include whatever restrictions he wished. The Court of Protection directed that the Office of the Public Guardian should register the lasting Power of Attorney accordingly.
Although valid with restrictions, those making Lasting Powers of Attorney should consider the practical and financial consequences of any restriction they place in their Lasting Power of Attorney documents.
If you would like advice on the registration of restricted Lasting Powers of Attorney please contact a member of our Wills, Probate and Private Client Department who will be happy to advise you.
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