In Re Clarke (19 September 2011)

Mr Clarke objected to the registration of his wife's LPAs, arguing she lacked capacity and the witness had not properly observed her signing. Senior Judge Lush rejected both challenges, applying Casson v Dade's 'line of sight' principle and the Mental Capacity Act 2005.

Facts

Mrs Clarke, who was suffering from Alzheimer’s disease, executed two Lasting Powers of Attorney (LPAs) on 9 March 2010 — one for health and welfare (appointing her husband and her three daughters A, B and C as attorneys), and one for property and financial affairs (appointing her husband and A as attorneys, with B and C as replacements). Because of her condition, Mrs Clarke signed by making her mark. W acted as witness, and Mrs Clarke’s GP acted as certificate provider on 31 March 2010, with Mr Clarke accompanying her to the surgery.

When registration was sought, Mr Clarke objected. He claimed (i) his wife lacked capacity to execute the instruments, and (ii) the documents had not been validly witnessed, asserting that W had not seen Mrs Clarke sign — initially suggesting W was not in the same room, and later that W was not at the property at all, but some five miles away. The Senior Judge directed registration pending determination of the application.

Issues

The court had to determine:

• Whether the LPAs were validly executed in accordance with regulation 9 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007, in particular whether Mrs Clarke signed ‘in the presence of a witness’.
• Whether Mrs Clarke had the requisite mental capacity at the material time to create the LPAs, applying sections 1–3 of the Mental Capacity Act 2005.

Arguments

Mr Clarke (applicant/objector)

Mr Clarke contended that his wife lacked capacity because of her Alzheimer’s, that the GP had merely asked her whether she was happy with the documents, and that the witnessing was defective because W had not seen Mrs Clarke sign — claiming at one point that W had signed at his own home five miles away. He also relied on his solicitor’s evidence that Mrs Clarke could not recall executing the LPAs two months later, and on a telephone conversation in which Mrs Clarke apparently said she wanted her husband, not the daughters, to deal with her affairs.

Respondents (A and W)

A and W gave consistent evidence that Mrs Clarke signed the LPAs in the dining room with A, after A had clearly explained the documents to her, and that W was in the adjacent room separated by clear glass doors with ‘Georgian bars’, through which there was a direct line of sight. C gave evidence, drawing on her own professional exposure to capacity issues, that her mother had capacity at the relevant time.

Judgment

Execution and witnessing

The Senior Judge set out the statutory framework, noting that the Mental Capacity Act 2005 and the LPA Regulations do not define ‘in the presence of’. He relied on the old authorities Shires v Glasscock (1688) and Casson v Dade (1781), which hold that a witness need only be in such a position as to see the signing if he chose to look, and that a ‘line of sight’ through a window (or between rooms) suffices.

On the evidence, the judge strongly preferred the accounts of A and W over Mr Clarke’s, finding Mr Clarke’s evidence ‘disingenuous and lacking in credibility’. He observed that if A and W had been fabricating events, they would have placed W at the table beside Mrs Clarke rather than leaving open the contentious question of line of sight. He found that W had a clear line of sight through the glass doors, and that Mrs Clarke equally could have seen W witness the documents through the same line of sight. The witnessing was therefore valid.

Capacity

Applying the statutory test in sections 1–3 of the Mental Capacity Act 2005, and having regard to Re K, Re F [1988] 1 All ER 358 and Re W (Enduring Power of Attorney), the judge was not satisfied that Mrs Clarke lacked capacity at the material time. Although she was practically incapable of managing her financial affairs, she knew who the attorneys were, knew they would be able to assume control of her affairs, and knew they could make decisions she could have made herself.

The judge accepted the GP’s evidence and made wider observations about the practical realities of capacity assessments conducted in short GP appointments, noting that assessors may take a ‘broad brush’ approach where the family appears united and the matter non-controversial, but that this does not invalidate the assessment. He emphasised that there is only one test for capacity — that in section 3 of the 2005 Act — though the manner of its application may vary.

He rejected Mr Clarke’s reliance on his wife’s inability to recall signing two months later, citing section 3(3):

The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

He also treated with ‘extreme caution’ the telephone conversation with Mr Clarke’s solicitor, suggesting Mrs Clarke may have been coached by her husband.

Outcome

The application was dismissed. On costs, the Senior Judge departed from the general rule, declining to order Mrs Clarke to pay Mr Clarke’s costs, finding that the application had been brought for Mr Clarke’s benefit rather than his wife’s and that he had not acted in good faith.

Implications

The decision confirms that the ‘line of sight’ principle derived from Casson v Dade applies to the witnessing requirement in regulation 9 of the 2007 LPA Regulations: a witness need not be in the same room as the donor provided there is a clear line of sight through which each could see the other sign if they chose to look. The judge described this as ‘basic commonsense’ that has ‘stood the test of time’.

The judgment also reinforces that the capacity test under sections 1–3 of the Mental Capacity Act 2005 is the sole test, although the thoroughness with which an assessor applies it will, realistically, vary with the circumstances — particularly in short GP consultations. A donor may have capacity to create an LPA even where she is practically unable to manage her own affairs, provided she understands who the attorneys are, the authority they will have, and the effect of the instrument. Inability to recall signing at a later date does not, by virtue of section 3(3), negate capacity at the material time.

The case is of practical importance to solicitors, certificate providers, GPs and Court of Protection practitioners advising on the proper execution of LPAs and in contested registration proceedings, and illustrates the Court’s willingness to depart from the normal costs rule where an objector has not acted in good faith or in the donor’s interests.

Verdict: Mr Clarke’s application objecting to the registration of the LPAs was dismissed; the LPAs were held to have been validly executed and witnessed, and Mrs Clarke was found to have had capacity at the material time. The Senior Judge departed from the general costs rule and declined to order Mrs Clarke to pay her husband’s costs.

Source: In Re Clarke (19 September 2011)