The High Court has refused to register an enduring power of attorney signed by a man identified as SCR, finding he lacked the capacity to understand the instrument’s full effect when he signed it in November 2013.
The contested application was brought by his son, ER, who was named as attorney. The man’s daughters, DR and FR, objected, arguing that the power was invalid, that the proposed attorney was unsuitable, and that fraud or undue influence had been used. The court decided the capacity issue and did not consider the objection to the son’s suitability.
In a judgment delivered on 20 May 2015, Ms Justice Baker said the relevant question was whether, on the balance of probabilities, the donor understood the nature and effect of the power at the time he executed it. She said this was a legal assessment based on all the evidence. An enduring power could give an attorney broad authority over the donor’s property and financial affairs once it became operative, and the donor needed to understand that scope.
The evidence included medical records describing dementia and declining cognitive function. The donor had moved into a nursing home on 22 October 2013. His solicitor, Anthony O’Gorman, said he explained the concept and meaning of the power and found the donor able to discuss his requirements rationally. A doctor later signed the statutory capacity certificate, but had not examined the donor for that purpose. The judge said an independent medical assessment was required and that, given the donor’s progressive condition, an assessment close to the signing would have been desirable.
The judge also considered what had been explained at the nursing home. The solicitor’s account focused on enabling the son to pay the donor’s accounts. The judge accepted that the immediate context, including nursing-home costs, had been explained, but was not satisfied that the donor had been told or understood that the instrument granted general authority over all his financial affairs and property.
Ms Justice Baker concluded that the evidence as a whole did not establish that the donor was sufficiently lucid to understand the power’s nature and scope. She sustained the objection that the instrument was invalid and refused the application to register it. The judgment does not make a finding on the separate allegation of unsuitability, which the court said it would not address because the capacity question was decisive.