Held, (1) The provisions of the Mental Capacity Act 2005 regarding lasting powers of attorney had to be interpreted taking into account the central premise of the legislation, namely, to protect and promote individual autonomy, making it undesirable to adopt a restrictive interpretation which did not promote the objective of ensuring that donors were afforded the flexibility to indicate how they wished their affairs to be regulated. However, section 10(4) provided only three alternative bases on which donees could be appointed to take decisions for a donor, permitting donees to be appointed “jointly”, “jointly and severally” or “jointly in respect of some matters and jointly and severally in respect of others”. That list was exhaustive and, if a donor chose to appoint more than one attorney on a joint and several basis, it had to be understood that equality prevailed. A provision such as “in the event of disagreement, A is to defer to B” or “B’s decision will be final” was irreconcilable with the phrase “jointly and severally”. The practice of the Public Guardian of applying for severance in such situations was to be endorsed (paras 31, 36, 39).

(2) The making of joint and several appointments, with instructions for attorneys to deal separately with defined areas of the donor’s affairs, was likewise incompatible with the concept of “joint and several” which, axiomatically, necessitated the involvement of both or all the attorneys. What was really contemplated by such instructions was two donees/attorneys, in effect, acting severally in relation to different areas of the funds. Given the plain wording of section 10(4), which was strikingly short, succinct, and clearly intended to be exhaustive, it was not possible to adopt a wider, “purposive” construction, so as to preserve the donor’s autonomy, without a significant rewriting of the statutory provision in a manner which would offend against the conventional principles of statutory construction. In dealing with the practical challenges involved in dividing personal and business responsibility for the donor’s estate, separate lasting powers of attorney would provide a clearer and more effective route for the donor, requiring, of necessity, a more intense focus on the specific duties and obligations involved in each and a concentration on their ultimate feasibility (paras 40, 41).

(3) As was agreed by the parties, a “majority rule” provision, where instruments sought to instruct multiple attorneys to act on a majority basis, had to be severed as being inconsistent with the statutory provision. While that had real potential to create a cumbersome and legally unattractive position, the provisions of section 10(4) were drafted so tightly that they left very little, if any, scope for a purposive approach (paras 43, 45).

(4) However, where the word “should” was used, its interpretation would be highly fact-specific and its significance and force would be dependent on context. It was the wording on the forms that generated the ambiguity and the use of “should” would not automatically give rise to severance. For example, where, in one of the cases before the court, the donor had ticked the box on the form indicating that she wanted to appoint her donees jointly for some decision but jointly and severally for other decisions, and had added that “any decision should be made by a majority of attorneys”, the proper conclusion was that the donor was manifestly granting a valid power for the attorneys to make decisions either jointly or severally. The additional words, which clearly identified the donor’s intentions, did not require severance (para 46).

(5) Despite an inherent ambiguity in section 10(8)(b), a secondary replacement attorney was, self-evidently, consonant with the rationale of the 2005 Act. Conversely, a scheme which prohibited the appointment of a secondary replacement might, equally logically, conflict with the objectives of the legislation. A purposive interpretation, permitting the appointment of a secondary replacement attorney identified by the donor, did not do violence to the ordinary linguistic meanings of the words used and was to be preferred (para 49, 50, 53).

Per curiam. In so far as the relevant form for a lasting power of attorney provides an option for the donor to incorporate “preferences and instructions”, it introduces concepts which are distinctly different from the concepts of “conditions or restrictions” in the statutory wording of section 9(4) of the 2005 Act. While the wording of the 2005 Act must prevail over that used on the form, the differences provide a recipe for confusion. A donor who constructs their instructions around the language of the forms, rather than the language of the statute, risks invalidating the power of attorney altogether. Those responsible for drafting forms should revisit the terminology, as the central objectives of clarity and accessibility, which the most recent iteration of the form has substantially established, would not be compromised by realignment with the words of the statute (paras 18, 34, 42).