(Court of Protection, Senior Judge Lush, 16 August 2013)
The woman executed a lasting power of attorney, appointing her husband as her sole attorney and then nominating three replacement attorneys, namely, each of her two sons and niece respectively for each to act alone, successively. The husband made an identical LPA but when they sent them to the Office of the Public Guardian they were informed that replacement attorneys could not replace other replacement attorneys. The OPG would only register the LPAs if the ineffective provisions were severed by the Court of Protection. The woman and her husband opposed the OPA's application for severance.
The meaning of s 10(8)(b) of the Mental Capacity Act 2005 was not clear. It was striking that there was a complete absence in the legislative framework of mention of the possibility of a replacement attorney replacing another replacement attorney. Having regard to all the circumstances and the LPA scheme as a whole a replacement attorney could only replace the original attorney and not a replacement attorney. The provision appointing second and third replacement attorneys would, therefore, be severed.