Page 22 - Hunstanton Town & Around - February 2016
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22 Hunstanton Town & Around February 2016                              Tel: 01485 533422 email: editor@townandaround.net
                                                           The Regency Act 1937 and restrictions
                                                           on the use of LPAs

                                                           Written by Miranda Marshall – Director at Hayes + Storr
                                                           The  case  of  XY  v  Public
                                                           Guardian (2015) involved a very
                                                           wealthy  individual  who  in
        Financial Advice   Payroll   Taxation   VAT  Pensions   Investments  making  his  Lasting  Power  of
                                                           Attorney  (“LPA”)  wished  to
          A personal, professional accountancy service for
                                                           impose  detailed  guidance  and
          sole traders, partnerships and limited companies.  tight  restrictions  upon  his
                                                           Attorneys.
           annual accounts preparation                       The case was brought by the
           partnership and limited company accounts        Public Guardian (“PG”), the head
           self assessment tax returns                     of the administrative arm of the
           capital gains tax computation                   Court of Protection, who refused
           tax dispute insurance                           to register the LPA because of the
                                                           conditions. XY was a high-worth
           VAT advice
                                                           individual who owned assets in
           PAYE & payroll services
                                                           numerous countries and wanted
           full range bookkeeping services
                                                           to include additional safeguards.
           2015 p11d deadline for filing -19/07/2016       The conditions were intricate and  new-style LPA, as follows: “Be
           Company accounts with year end 31/03/15         aimed  to  ensure  that  decisions  careful – this can make your LPA
         ......last day for filing - 31/12/2016            could only be made on his behalf  a  lot  less  useful. Your  attorney
           2016 Self assessment.online filing-31/01/2017   when he clearly lacked capacity  might be asked to prove you do
           Are you RTI compliant for PAYE? – call  01485 534948  and there was a genuine financial  not  have  mental  capacity  each
         ........or email: james@jamesjohnsonltd.co.uk     need for a decision to be made.  time they try to use this LPA”.
                                                           The provisions were lengthy (5  The question therefore is does “a
                  Accountancy at a local level             sheets)   and   required   2  lot less useful” mean the same as
                                                           psychiatrists’  opinions  and  the  “ineffective”?
                  James Johnson (Accountancy) Ltd
                                                           opinion of a ‘Protector’. The role  The Senior Judge who decided
                7 Peddars Drive, Hunstanton PE36 6HF                                 the case told the PG that “it is not
                Company Reg: 5981654 • AAT Licence No: 126130  of the Protector was to review the
                                                           medical evidence before the LPA  part  of  his  statutory  duties  to
                                                           could be used. These provisions  police the practicality or utility of
                                                                                     individual  aspects  of  an  LPA.”
        Unique Hair Design                                 were similar to the Regency Act  This was a polite rebuff to the PG
                                                           1937 (the law that governs how
                                                           decisions would be made in the  not  to  involve  himself  in  such
        Incorporating Toni Fox Nails                                                 matters.  The  conditions  in  the
                                                           event  of  the  monarch  lacking
        01485 532826                                       capacity).  The  Protector  was  a  LPA were difficult and complex
                                                           third- party who had to agree with  but did not make it ineffective.
                                                           the medical evidence before the  The  case  makes  it  clear  that
                                                           powers   conferred   on   the  there is a distinction between a
                                                           Attorneys by the LPA could be  Protector   who   confirms
                                                           used.                     incapacity  (allowed)  and  third
                                                             The PG objected on the basis  parties sanctioning decisions of
                                                           that  most  of  the  conditions  attorneys (not allowed).
                                                           imposed  were  an  unreasonable
                                                           fetter on the Attorneys’ power to  “This  article  aims  to  supply
                                                           act and were therefore ineffective  general information, but it is not
                                                           under the Mental Capacity Act.  intended  to  constitute  advice.
                                                           One  of  the  main  concerns  was  Every  effort  is  made  to  ensure
                                                           that  the  ‘Protector’  was  not  an  that the law referred to is correct
                                                           Attorney, yet was in a position to  at the date of publication and to
                                                           interfere with the Attorneys’ duty  avoid any statement which may
                                                           to act in the best interests of XY.  mislead.  However no duty of care
                                                           The Protector was not bound in  is assumed to any person and no
                                                           law  by  the  same  duties  as  the  liability  is  accepted  for  any
                                                           Attorneys.                omission or inaccuracy.  Always
                                                             Even though this case is very  seek our specific advice”.
                                                           specific to the facts and concerns
                                                           an  extremely  rich  person,  If  you  require  advice  on  this
                                                           essentially it is about the question  matter please contact Miranda on
                                                           of whether the LPA is effective  01328  710210.    If  you  require
                                                           “only  when  I  don’t  have  advice on any other legal matter
                                                           capacity” in accordance with the  please telephone our Hunstanton
        28 St Edmund’s Avenue                              prescribed  form  of  an  LPA,  or  office on 01485 524166 or email
        Hunstanton                                                                   law.hunstanton@hayes-
                                                           not. There is something akin to a
                                                           government health warning in the  storr.com.
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