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Lasting Power of Attorney

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  • Lasting Power of Attorney

    An LPA (Lasting Power of Attorney) is created so that decisions about health and finances can be conducted when one has lost capacity to make decisions.
    The OPG ( Office of the Public Guardian) insists that the LPA be in the form of a deed which cannot be corrected.
    The CRITICAL question is whether an LPA can be created by means other than a deed. When interpreting an Act of parliament, words take their ordinary meaning unless directly defined in the Act ( usually in the definitions section) or indirectly by cross-referencing to a definition in a different Act.
    In S9(3), and Schedule 1 of the Mental Capacity Act (MCA) 2005, there is repeated reference to an “instrument”, there is no reference to a deed.
    The interpretation section, (section 64 MCA 2005) makes no reference to a deed. . The definitions in the Powers of Attorney Act (PAA) 1971 would need to be imported into the MCA by cross-referencing to apply. Similar words are often used in different acts but have different meanings. . If parliament had wanted a deed, they would have specified one in the Act ( either directly or by cross-referencing to another act) and not used a totally different definition..
    As an example look at Road Traffic Act 1988,
    section 11 “controlled drug has the meaning given by S2 of the misuse of Drugs Act 1971”
    section 85 “public service vehicle has the same meaning as in the Public Passenger Vehicles Act 1981”.
    I have been unable to find any similar cross referencing to the Powers of Attorney Act 1971 stating that an instrument must be a deed. Without this, this act is not relevant.
    The same term “instrument in writing” appears in the Section 142 of the Inheritance Taxes Act 1984. This governs the deed of variation which permits the re-writing a will after the death of the testator. This often results in a substantial saving in inheritance tax (to the individual but at the expense of the general taxpayer). HM Revenue & Customs produce a helpful checklist. HMRC states that the “variation...does NOT have to be by formal Deed, you can use a letter or other document”.
    Words frequently have different meanings depending on which chapter of the Taxes Act one is dealing with.
    In my opinion the lack of cross-referencing is fatal to OPG’s claim that an LPA must be in the form of a deed.
    I would be interested whether my argument is right or wrong, especially the reasons for the latter
    Tags: None

  • #2
    You may do well to obtain Counsel's opinion.
    Lawyer (solicitor) - retired from practice, now in academia. I do not advise by private message.

    Litigants in Person should download and read this: https://www.judiciary.uk/wp-content/..._in_Person.pdf


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