XKG v XKF

Facts

P, an 87-year-old permanent resident, was diagnosed with dementia in 2020 and with moderate dementia on 13 July 2023. After a fall she was hospitalised on 21 July 2023; a medical social worker reported that she could not retain information after a few minutes, and hospital doctors found she lacked capacity to decide on her discharge and care. On or around 24 August 2023, at a psychiatrist's clinic, she executed a lasting power of attorney (LPA) in Form 1 appointing her brother, the appellant, who lives in the United States, as donee and his son as replacement donee. The same day she signed a statutory declaration disclaiming ownership of two properties held through a company of which she was sole director and shareholder. The psychiatrist issued the LPA certificate after an assessment on 22 August 2023 in which she scored in the moderate dementia band. Weeks later she was diagnosed with Alzheimer's disease, and two other specialists found she lacked capacity.

P's only son, the respondent, who lives in Australia, applied for a declaration that P lacked capacity to execute both documents. The District Judge agreed, revoked the LPA and invalidated the declaration. The brother appealed in District Court Appeal No 2 of 2025 only as to the LPA, arguing that the judge misread the cognitive test, gave too much weight to P's poor knowledge of her assets, and wrongly faulted the failure to involve the son.

Issues

1. What information a donor must be able to understand, retain and use or weigh to execute an LPA in Form 1.
2. Whether P was able to make the decision to execute the LPA on 24 August 2023, given her memory and her awareness of her assets.
3. Whether the certificate issuer's explanation and the exclusion of the son bore on the outcome.

Holding

The High Court (Family Division) dismissed the appeal, holding that the presumption of capacity was rebutted and that P lacked capacity to execute the LPA on 24 August 2023, so the whole instrument, including the replacement donee appointment, failed. Costs submissions were directed if costs could not be agreed.

Reasoning

On the relevant information, the court held that a donor must grasp the nature and purpose of an LPA as operating on future incapacity, its legal effect in placing the donee in the donor's position, the scope of the authority granted, and the foreseeable consequences. Executing Form 1 involves a series of choices about powers, donees, restrictions and replacements. That is neither a mere choice of a trusted person nor a complex legal analysis. The line between LPAs and court-supervised deputyship must be kept.

On P's ability, it was not disputed that she had dementia. The test two days before execution showed she could not give the date, recall three objects or spell a word backwards, consistent with the hospital observations. There was no evidence of a good day. Asset awareness lies on a spectrum and is not decisive for Form 1, but P was at the extreme end: she told the psychiatrist she had no properties and named only one bank account, according to the son's account of an estate of about $16.97 million. Her steady affection for her brother did not show understanding. Asked about restricting the donee's power to sell her home, she kept replying that she already lived there, showing she could not engage with the future effect of the powers.

On the remaining points, the certificate issuer admitted not reading or explaining Section 4 on the donee's powers, and the court agreed this should have been done. Involving the son was not legally required, but excluding him left P with information from one side only.

From the judgment