Category

EPA cases - all

Case and summary Date added Categories
R v Kurtz [2018] EWCA Crim 2743 — "The Registrar of Criminal Appeals has referred this application for permission to appeal against conviction and sentence to the Full Court. The application concerns the scope of the offence created by s 44(2) read, in this case, with s 44(1)(b) of the Mental Capacity Act 2005 ('MCA 2005) of which the Appellant was convicted. This provision has not previously been considered by the Court of Appeal. ... The essential question at the heart of this appeal is whether, on a prosecution for the offence contrary to s 44(2) read with s 44(1)(b), the prosecution must prove that the person said to have been wilfully neglected or ill-treated lacked capacity, or that the defendant reasonably believed that s/he lacked capacity. We shall refer to this as 'the lack of capacity requirement'. ... The submission by Ms Wade QC on behalf of the Appellant was that the existence of the EPA was not sufficient of itself to render the Appellant guilty of the offence contrary to s 44(1)(b) of the MCA 2005 even if she had wilfully neglected her mother. ... Despite our comments in [19] above as to the evidence which suggests that, at a minimum, the Appellant should reasonably have believed her mother to lack mental capacity in matters of personal welfare, the judge's failure to direct the jury in this regard is fatal to the safety of the conviction and the appeal must be allowed." 2018‑12‑10 22:06:13 2018 cases, Cases, EPA cases - all, EPA cases - other, ICLR summary, No summary, Transcript


Re WP (deceased) and EP [2015] EWCOP 84, [2015] MHLO 129 — "This is an application by two attorneys acting jointly under two separate Enduring Powers of Attorney for the retrospective approval of monthly payments of £150 each that they have made to themselves and to their sister from the donors' funds. ... This application is a composite claim for the payment of an allowance of £150 per month to each attorney in respect of three distinct heads of claim, and I shall deal with these heads of claim in the following order: (1) travelling expenses; (2) remuneration for acting as attorneys; and (3) a 'gratuitous' care allowance. I would prefer not to be cornered into approving any particular mileage rate. If the Public Guardian wishes to give guidance on such matters, that's up to him. What I shall say is simply by way of general observation. ... In my judgment, the business mileage rates quoted by HMRC [45 pence for every business mile for the first 10,000 miles and 25 pence for every business mile thereafter] should be substantially discounted to reflect the fact that these are not 'business' rates but domestic rates. When dealing with the affairs of an elderly and incapacitated relative, attorneys are generally expected to act out of common decency and not to profit from their position. ... I do not propose to allow them any specific remuneration for the actual management of their parents' property and financial affairs. ... I am satisfied in Theresa's case that the care support she provides and the travelling expenses she incurs merit the payment of a sum of £150 a month from her parents' funds. Stephen does slightly less than his sister Theresa in terms of care support, but has to travel a greater distance to perform these functions and, on balance, I am satisfied that he too should continue to pay himself a composite allowance of £150 a month in respect of travelling expenses and care support." 2015‑12‑22 21:50:32 2015 cases, EPA cases - all, EPA cases - other, No summary, Transcript


Re P [2015] EWCOP 37, [2015] MHLO 111 — "This is an application by the Public Guardian for an order revoking an Enduring Power of Attorney ('EPA') on the grounds that, having regard to all the circumstances, H is unsuitable to be his wife's attorney. ... Therefore, having regard to all the circumstances, I am satisfied that H is unsuitable to be P's attorney and I shall by order revoke the EPA. I shall also make a separate order appointing S and D jointly and severally to be P's deputies for property and affairs." 2015‑12‑21 23:04:05 2015 cases, Deputyship cases, EPA cases - all, EPA cases - other, No summary, Transcript


Re SF [2015] EWCOP 68, [2015] MHLO 84 — "This is an application by the Public Guardian for the court to revoke an Enduring Power of Attorney ('EPA') and to direct him to cancel its registration." 2015‑10‑31 20:40:13 2015 cases, EPA cases - all, EPA cases - other, No summary, Transcript


Re RG [2015] EWCOP 66, [2015] MHLO 82 — "This is an application by Northamptonshire County Council for the court to revoke an Enduring Power of Attorney ('EPA') and to appoint a professional deputy to manage the donor's property and affairs in place of the attorney." 2015‑10‑31 20:36:37 2015 cases, Deputyship cases, EPA cases - all, EPA cases - other, No summary, Transcript


Re ED: Public Guardian v JD [2015] EWCOP 26, [2015] MHLO 53 — "This is an application by the Public Guardian to revoke an Enduring Power of Attorney." 2015‑07‑20 20:39:32 2015 cases, EPA cases - all, EPA cases - other, No summary, Transcript


Re DT: Public Guardian v IT [2015] EWCOP 10, [2015] MHLO 21 — "This is an application by the Public Guardian to revoke and cancel the registration of an Enduring Power of Attorney. It is unusual for me to dismiss an application by the Public Guardian, but on this occasion I am not satisfied that the order he is seeking: (a) is proportionate; (b) is less restrictive in terms of DT's rights and freedom of action; (c) respects DT's rights, will and preferences; (d) warrants public interference in his private and family life; or (e) is in his best interests." 2015‑03‑24 17:17:28 2015 cases, EPA cases - all, EPA cases - other, No summary, Transcript


Re F [2004] EWHC 725 (Ch) — "This is an appeal from the refusal of Master Lush, the Master of the Court of Protection, to register an enduring power of attorney dated 10th July 2000 which was made by the donor (Mrs F) in favour of her son (Mr A). The Master upheld an objection to registration on grounds of the unsuitability of Mr A to be the donor's attorney, which was lodged by his sister (Mrs B)." 2015‑03‑24 17:09:47 2004 cases, EPA cases - all, EPA cases - other, No summary, Transcript


Re RG: Public Guardian v PB [2015] EWCOP 2, [2015] MHLO 6 — "This is an application for the court to reconsider an order made on the papers, partially revoking an enduring power of attorney." 2015‑01‑30 10:00:31 2015 cases, EPA cases - all, EPA cases - other, No summary, Transcript


Re AB (Revocation of Enduring Power of Attorney) [2014] EWCOP 12, [2014] MHLO 55 — "This is an application for the court to revoke an Enduring Power of Attorney on the ground that, having regard to all the circumstances, the attorneys are unsuitable to be the donor's attorneys. ... MD and WD have breached their fiduciary duties in several ways and in the circumstances I am satisfied that they are unsuitable to be AB's attorneys, and I shall revoke the EPA. As far as the choice of deputy is concerned, the appointment of an independent professional deputy or panel deputy would be disproportionate. What is left of AB's estate would rapidly be eroded by the professional deputies' costs. I agree with Miss Cooper that Brent Council is best placed to act as deputy, as AB is in a residential care home and the Council is already funding the lion's share of her care fees." 2014‑07‑28 13:54:59 2014 cases, 39 Essex Street summary, EPA cases - all, EPA cases - other, Transcript


Re Johnston [2012] MHLO 130 (EPA)The donor appointed two attorneys to act jointly and severally. The donor included the following restriction: "The property at [address] shall not be disposed of without the agreement of A, B and C, as children of [the donor] in addition to the attorneys." On the attorneys' application the restriction was severed as being ineffective as part of an EPA. [OPG summary - EPA case.] 2012‑12‑18 22:17:46 2012 cases, Brief summary, EPA cases - all, EPA cases - severance of restriction fettering authority of attorney, No transcript


Re Newman [2012] MHLO 73 (EPA)The donor made an EPA in which, amongst other defects, he failed to select either of the following alternatives: "with general authority to act on my behalf" or "with authority to do the following on my behalf". The court confirmed that this failure did not invalidate the EPA, because it was an immaterial difference from the prescribed form within paragraph 2(4) of Schedule 4 of the MCA. [OPG summary - EPA case.] 2012‑08‑16 22:02:19 2012 cases, Brief summary, EPA cases - all, EPA cases - immaterial differences from the prescribed form, Transcript


Re Stapleton [2012] MHLO 72 (EPA)(1) The court directed the Public Guardian to cancel the registration of the EPA, because the attorney's financial abuse made him unsuitable. (2) A panel deputy was appointed instead. (3) D was ordered to pay his own costs (a departure from the general rule in property and affairs cases that P pays) because of D's conduct before and during proceedings. 2012‑08‑16 21:57:10 2012 cases, Brief summary, EPA cases - all, EPA cases - suitability of attorney, Transcript


Re Taylor [2012] MHLO 24 (EPA)(1) In Re Dunningham: The donor appointed two attorneys, A and B, to act jointly and severally. She then imposed the following restriction: "and the said B shall have no authority to act on my behalf unless the said A has died or is incapable of acting as my Attorney". On the application of the attorneys for severance, the court severed the restriction as being inconsistent with a joint and several appointment. (2) In Re Taylor: on similar facts, the court severed the words 'jointly and severally'. [OPG summaries - EPA cases.] 2012‑03‑22 21:04:40 2012 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Jarman (2011) COP 8/8/11The donor made an EPA appointing attorneys to act jointly and severally. He included the following restriction: "While both of my Attorneys are alive and of capacity they are to act jointly and a certificate from a practising doctor will be sufficient evidence of capacity of either of my Attorneys." On the application of the attorneys the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary - EPA case.] 2011‑10‑01 21:54:15 2011 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Stevens (2011) COP 11/1/11The donor made an EPA including the following provision: "The word "seasonal" in section 3(5) of the Enduring Powers of Attorney Act 1985 includes the end of one tax year and the beginning of another." On the application of the attorneys the court severed the provision as being ineffective as part of an EPA. [OPG summary - EPA case.] 2011‑01‑30 19:52:37 2011 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript


Re Harris (2011) COP 6/1/11The donor made an EPA purporting to authorise the Attorneys to do the following: "Making a choice on my behalf for any nursing/residential care needed for me in the future." On the application of the Attorneys the court severed the provision on the ground that it would be ineffective as part of an EPA, because it sought to authorise Personal Welfare decision making. [OPG summary - EPA case.] 2011‑01‑30 19:50:53 2011 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript


Re Donegan (2011) COP 6/1/11The donor made an EPA including the following provision: "All the while that I am practically and financially able to remain in my own home my Attorneys should ensure that I remain there. My Attorneys do not have power to sell my home." On the application of the Attorneys the court severed the restriction on the ground that it was ineffective as part of an EPA because it sought to confer Personal Welfare decision making powers on the Attorneys. [OPG summary - EPA case.] 2011‑01‑30 19:49:58 2011 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript


Re Berg (2010) COP 31/12/10The donor made an EPA appointing A and B to act jointly. He then added: "so long as neither Attorney dies or is incapacitated in which eventuality the other Attorney is empowered to act on his own". On the application of the attorneys the court severed the restriction as being incompatible with a joint appointment. [OPG summary - EPA case.] 2011‑01‑30 19:48:46 2010 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint appointment, No transcript


Re Haworth (2010) COP 20/12/10The donor made an EPA appointing A and B to act jointly and severally. He then imposed the following restriction: "B shall not, while A is alive and mentally capable, without A's consent (a) sell, mortgage, charge, lease, or otherwise dispose of any asset of mine or (b) enter into any transaction with a value of more than £2,000." On the attorneys' application the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary - EPA case.] 2011‑01‑30 19:47:28 2010 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Freeman (2010) COP 7/9/10The donor signed Part B of the EPA instrument on 14 April 2006, but the attorney did not sign Part C until 3 October 2008. The Public Guardian refused to register on the ground that an instrument could not be a valid EPA unless the attorney had signed before 1 October 2007. Section 66(2) of the Mental Capacity Act 2005 provides that an EPA cannot be "created" after commencement. On the attorney's application the court declared that the instrument was not a valid EPA. (The attorney applied for a reconsideration but the Judge confirmed his earlier decision by an order made at a hearing on 28 February 2011.) (Note: The Public Guardian will register an EPA appointing joint and several attorneys if at least one attorney signed before 1 October 2007 even though other(s) did not, in which case registration will be limited to the attorney(s) who signed before that date.) [OPG summary - EPA case.] 2010‑12‑01 21:52:30 2010 cases, Brief summary, EPA cases - all, EPA cases - whether the instrument was validly executed, No transcript


Re Orriss (2010) COP 20/10/10By mistake the donor's surname was omitted from the instrument, which included only his first and second names. The EPA was registered without the mistake being discovered. On the application of the attorney the court directed the Public Guardian to attach a note to the EPA stating that the donor's surname had been omitted in error from Part B. [OPG summary - EPA case.] 2010‑11‑28 20:45:34 2010 cases, Brief summary, EPA cases - all, EPA cases - rectification, No transcript


Re Williamson (2010) COP 25/10/10The donor appointed A, B and C to act jointly. He then imposed the following restriction: "The said B and C shall not exercise their authority under this Power whilst my wife is alive and able to act as my attorney." On the application of the attorneys the court severed the restriction as being incompatible with a joint appointment. [OPG summary - EPA case.] 2010‑11‑28 20:43:37 2010 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint appointment, No transcript


Re Dickenson (2010) COP 12/11/10The donor appointed two attorneys to act jointly and severally and imposed the following restriction: "My professional Attorneys may at any time appoint a substitute to act as my attorney and may revoke the appointment without giving reason. Every appointment is to be in writing signed by my Attorney. Every substitute has full powers as my attorney, as if appointed by this Deed, except the power to appoint a substitute." On the application of an attorney the court severed the restriction. Paragraph 2(6) of Schedule 4 of the MCA 2005 provides that "A power of attorney which gives the attorney a right to appoint a substitute or successor cannot be an enduring power." [OPG summary - EPA case.] 2010‑11‑28 20:41:47 2010 cases, Brief summary, EPA cases - all, EPA cases - appointment of substitute by an attorney, No transcript


Re Devine (2010) COP 13/10/10The attorney's signature in Part C was witnessed but the witness did not sign his name. On the application of the attorney the court declared that the instrument was defective in a material respect and did not take effect as an EPA. [OPG summary - EPA case.] 2010‑10‑25 21:49:42 2010 cases, Brief summary, EPA cases - all, EPA cases - whether the instrument was validly executed, No transcript


Re Farrow (2010) COP 18/8/10The donor appointed A to be her attorney and then appointed B to act in the event that A should be unable or unwilling to act or died. The donor then stated that A and B should act jointly and severally. On the application of the attorneys the court severed the words "jointly and severally", so that the instrument could be registered as an EPA appointing A as primary attorney and B as substitute attorney. [OPG summary - EPA case.] 2010‑09‑02 19:18:38 2010 cases, Brief summary, EPA cases - all, EPA cases - appointment by donor of substitute attorneys, No transcript


Re Porter (2010) COP 26/7/10The donor appointed his wife and two children as attorneys, to act jointly and severally. He added the following restriction: "My wife may act alone during her lifetime and whilst she is mentally capable. My children shall act jointly." On the application of an attorney the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary - EPA case.] 2010‑08‑16 22:15:47 2010 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Lodge (2010) COP 6/8/10Unfortunately by mistake the donor signed Part C and the attorney signed Part B of the EPA instrument. On the attorney's application the Court held that the donor's failure to execute the instrument correctly was a material defect and it was not a valid EPA. The attorney applied for a reconsideration of this order. By an order of the Senior Judge made on 14/3/11 the previous order was affirmed. [OPG summary - EPA case - transcript available.] 2010‑08‑16 22:12:57 2010 cases, Brief summary, EPA cases - all, EPA cases - whether the instrument was validly executed, Transcript


Re Pattison (2010) COP 11/5/10The donor appointed three attorneys, A, B and C, to act jointly and severally. A and B were her daughters. She then imposed the following restriction: "I direct that not less than two of my attorneys shall act whilst there are two alive and capable of acting and that initially those two shall be my two daughters." On the application of the attorneys the court directed severance of the restriction as being incompatible with a joint and several appointment. [OPG summary - EPA case.] 2010‑07‑09 20:46:24 2010 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Candy (2010) COP 18/3/10The donor appointed two attorneys to act jointly and severally. She then imposed the following restriction: "neither of my attorneys will act without the approval of the other". On the application of the attorneys the court severed the restriction as being inconsistent with a joint and several appointment. [OPG summary - EPA case.] 2010‑04‑11 20:52:57 2010 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Akpabio (2010) COP 15/3/10The donor made an EPA appointing two attorneys to act jointly and severally. He included the following restriction: "I want them to act jointly on important matters concerning my welfare including any future living arrangements and on any large financial decisions such as selling my property." On the application of the attorneys the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary.] 2010‑03‑24 23:50:09 2010 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Bax (2009) COP 22/10/09The donor appointed A and B to act jointly, and then provided that "In the event A is unable or unwilling to act as my attorney then I appoint C." On the attorneys' application the court severed the appointment of C. Although a donor may appoint a substitute attorney, the appointment must not be incompatible with a joint appointment of the original attorneys. [OPG summary - EPA cases.] 2010‑01‑20 19:02:21 2009 cases, Brief summary, EPA cases - all, EPA cases - appointment by donor of substitute attorneys, No transcript


Re Smith (2009) COP 7/12/09In Part C of the EPA the attorney had deleted the words "I also understand my limited power to use the donor's property to benefit persons other than the donor". On the attorney's application, the court was satisfied that the deletion was made in error, and directed that the instrument should be read as if the wording had not been deleted. [OPG summary - EPA case.] 2010‑01‑12 19:02:19 2009 cases, Brief summary, EPA cases - all, EPA cases - rectification, No transcript


Re Cloutt (2008) COP 7/11/08The donor made an EPA in October 2000 appointing NatWest Bank as attorney. This was registered in March 2008. In April 2008 the donor executed an instrument intended to be a Lasting Power of Attorney, appointing a different attorney, and executed a deed revoking the EPA. In the LPA the Part B certificate was provided by a medical practitioner, who had confirmed that he was satisfied that the donor was able to make an LPA. In June 2008 the LPA attorney applied to court for an order confirming the revocation of the EPA (as required by paragraph 15 of Schedule 4 of the MCA). The Senior Judge made a directions order in August 2008 requiring the submission of further evidence on the ground that the revocation of an EPA is a different transaction from the creation of an LPA, and capacity to create an LPA is not necessarily the same as capacity to revoke an EPA. Thus a doctor’s certification of an LPA is not of itself sufficient proof of capacity to revoke an EPA. On considering the further evidence subsequently provided by the doctor and the donor’s solicitor, the court was satisfied that the donor had capacity to revoke the EPA. A final order was made confirming the revocation of the EPA and directing the Public Guardian to cancel its registration. [OPG summary - EPA case.] 2009‑11‑29 23:58:12 2008 cases, Brief summary, EPA cases - all, EPA cases - capacity to revoke EPA - test is not the same as for creation of LPA, No transcript


Re Portues (2009) COP 6/1/09In Part B of the instrument the donor appointed attorneys to act jointly and severally and struck out the words “with general authority to act”, leaving in place the words “with authority to do the following”. She did not include any instructions under those words to indicate the scope of the attorneys’ powers. On the application of the attorney for rectification of the instrument, the court was satisfied that it was the donor’s intention to confer general authority on the attorneys and that the deletion of those words was a clerical error. The court declared that the EPA was to be read and construed as if the donor granted general authority to the attorneys and directed the Public Guardian to reconsider the registration of the EPA in the light of the declaration. [OPG summary - EPA case.] 2009‑11‑29 23:57:56 2009 cases, Brief summary, EPA cases - all, EPA cases - rectification, No transcript


Re Sawyer (2009) COP 31/3/09In Part B of the EPA the donor appointed four attorneys, but omitted to strike out either option "jointly" or "jointly and severally" in relation to how they should act. On the application of the attorneys, the court was satisfied that the donor had intended to appoint them to act jointly and severally, and directed that the EPA should be construed as if they had been appointed jointly and severally and the alternative option "jointly" had been deleted. The Public Guardian was directed to attach a note to that effect to the registered EPA. [OPG summary - EPA case.] 2009‑11‑29 22:51:33 2009 cases, Brief summary, EPA cases - all, EPA cases - rectification, No transcript


Re Corbett (2008) COP 4/12/08A restriction in an EPA which had been registered in 2006 contained the following restriction: “No transaction with a value greater than £500 to be actioned without the written permission of my son SC.” The attorney applied for an order removing the restriction on the grounds that SC’s whereabouts were unknown and had not been heard from for 12 months. The attorney wished to sell the donor’s house to pay for care home fees. The court determined that, having regard to all the circumstances, the restriction was an unreasonable fetter on the scope of the attorney’s authority, and was having an adverse impact on the management and administration of the donor’s property and affairs. The restriction was accordingly severed and the Public Guardian was directed to register a note to that effect. [OPG summary - EPA case.] 2009‑11‑29 22:46:56 2008 cases, Brief summary, EPA cases - all, EPA cases - severance of restriction fettering authority of attorney, No transcript


Re Shepherd (2009) COP 13/3/09The donor appointed three attorneys to act jointly, adding the words "Any two out of the three attorneys shall have power to sign jointly on my behalf". The court severed these words as being incompatible with a joint appointment. [OPG summary - EPA case.] 2009‑11‑29 22:39:10 2009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint appointment, No transcript


Re Bainbridge (2009) COP 10/3/09The donor appointed her three children to act jointly, adding the restriction "PROVIDED THAT in the event that any one or more of my said children shall die or shall for any other reason be unable to act as my Attorneys then I appoint my remaining children to be my Attorneys for the purpose of the Enduring Powers of Attorney Act 1985 and in the event that only one of my said children shall be able to act as my Attorney then I appoint him/her as my sole Attorney for the purposes of the Enduring Powers of Attorney Act 1985." On the application of the attorneys under paragraph 4(5) of Schedule 4 of the Mental Capacity Act 2005 to determine whether the power was valid, the court severed the restriction as being incompatible with a joint appointment. (OPG summary.) 2009‑11‑29 22:38:04 2009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint appointment, No transcript


Re Rayner (2009) COP 9/6/09The donor appointed A and B as attorneys to act jointly and severally with general authority to act in relation to all her property and affairs. She then imposed a restriction, stating that A and B should not act in relation to properties jointly owned with the donor, and that C was appointed as attorney in relation to these properties. On the application of the attorney the restriction was severed, with the result that A and B could act in relation to all the donor's property and affairs and C could not act. [OPG summary - EPA case.] 2009‑11‑29 22:36:10 2009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Meaker (2009) COP 16/6/09The donor appointed two attorneys to act jointly and severally. She added the following restriction: "My attorneys shall act jointly at all times unless the death, incapacity or bankruptcy of either one of them shall preclude her from acting, in which case the other Attorney shall continue to act alone". On the application of the attorney the restriction was severed as being ineffective as part of an EPA. (OPG summary.) 2009‑11‑29 22:35:20 2009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Dunningham (2009) COP 15/9/09(1) In Re Dunningham: The donor appointed two attorneys, A and B, to act jointly and severally. She then imposed the following restriction: "and the said B shall have no authority to act on my behalf unless the said A has died or is incapable of acting as my Attorney". On the application of the attorneys for severance, the court severed the restriction as being inconsistent with a joint and several appointment. (2) In Re Taylor: on similar facts, the court severed the words 'jointly and severally' [OPG summaries - EPA cases.] 2009‑11‑29 22:34:04 2009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Bridge (2009) COP 25/9/09The donor appointed three attorneys to act jointly and severally. He imposed the following restriction: "2 of the 3 can deal with any household or every day expenses, but for any other issues I would like all 3 attorneys to be signatories. In particular I would not like my house to be sold or money to be invested without agreement and signatory from all 3. My money and assets are to be used to cover my care and living expenses in old age and ill health." On the application of an attorney the court directed severance of the restriction as being ineffective as part of an EPA. (OPG summary.) 2009‑11‑29 22:32:21 2009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Wills (2008) COP 20/11/08The donor appointed three attorneys to act jointly and severally. She then imposed the following restriction: “Although I have appointed my Attorneys to act jointly and severally, I require that at least two of them shall sign any cheque on my behalf for a sum in excess of £500 or act in any transaction worth over £500.” On the application of the attorneys to determine whether the power was valid, the court severed the restriction. (OPG summary.) 2009‑11‑29 22:31:18 2008 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Blair (2008) COP 1/10/08The donor appointed two attorneys to act jointly and severally, and contained the following restriction: “For single transactions of a value in excess of £500 (five hundred pounds) then I declare my attorneys shall act jointly as against jointly and severally.” On the application of the attorneys under paragraph 4(5) of Schedule 4 of the MCA to determine whether the power was valid, the court severed the restriction. (OPG summary.) 2009‑11‑29 22:30:00 2008 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Robinson (2009) COP 18/9/09An EPA provided that "My Attorneys shall have power to deal with my affairs from time to time as may be necessary to reduce the incidence of Inheritance Tax at the date of my death provided that lump sum payments shall only be made to or on behalf of such persons who would otherwise receive the benefit of my estate as residuary beneficiaries (either original or substituted) of my Will." On the application of the attorneys the court severed this restriction on the ground that it would be ineffective as part of an EPA (because it exceeded the statutory power to make gifts under Sched 4 paragraph 3 of the MCA). [OPG summary - EPA case.] 2009‑11‑29 22:28:35 2009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript


Re Hollins (2009) COP 10/6/09In Part B of the instrument, under the heading "subject to the following restrictions and conditions", the donor wrote "See attached supplement". The attached supplement listed extended powers, including: (1) Extended powers to deal with my affairs, (2) Power to consent to medical treatment, and (3) Extended power to make gifts. The Public Guardian refused registration on the ground that the first two of the above provisions did not relate to the donor's property and affairs, and that the third was inconsistent with Schedule 4, para 3(3) of the Mental Capacity Act. On the attorney's application, the court directed severance of the attached supplement and the reference to it in Part B of the instrument. [Full details of supplement available on case page.] 2009‑11‑29 22:26:59 2009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript


Re Viveash (2009) COP 21/9/09An EPA provided that "I grant to my attorneys the power to deal with all matters concerning my welfare health and matters of a personal nature to me and all other matters affecting me or my possessions." On the application of the attorneys the court severed the restriction on the ground that it would be ineffective as part of an EPA. [OPG summary - EPA case.] 2009‑11‑29 22:22:22 2009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript


Re King (2009) COP 14/7/09An EPA provided that "In case that I am unable to take part in decisions about my medical care then I appoint my Attorney to represent my views about them if I am unable to do so". On the application of the attorney the court severed this provision on the ground that it would be ineffective as part of an EPA. (OPG summary.) 2009‑11‑29 22:21:15 2009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript


Re Ditcham (2009) COP 12/5/09An EPA provided that "my attorney(s) may take decisions on where I shall live provided that these decisions are made in my best interests and may negotiate with Social Services and any other relevant authorities to secure the best treatment and accommodation on my behalf that can be provided". On the application of the attorneys the court severed this provision on the ground that it would be ineffective as part of an EPA. (OPG summary.) 2009‑11‑29 22:19:44 2009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with an EPA, No transcript


Re Heartfield (2008) COP 17/6/08The donor stated in the EPA: “I delegate all my trustee functions and powers whether conferred by statute, general law or a trust instrument to my attorneys”. On the application of the attorney the court determined that the provision was ineffective as part of an EPA and severed it. [OPG summary - EPA case.] 2009‑11‑29 22:12:11 2008 cases, Brief summary, EPA cases - all, EPA cases - delegation of trustee functions, No transcript


Re Vallet (2009) COP 27/1/09The original EPA could not be produced, nor was there a certified copy in existence. Regulation 24(2) of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 provides that, in such a case, the Public Guardian must not register without an order of the court. On the application of the attorney the court declared that it was satisfied that the copy was a copy of the original EPA, which had been lost but not revoked, and directed registration. [OPG summary - EPA case.] 2009‑11‑29 22:11:04 2009 cases, Brief summary, EPA cases - all, EPA cases - registration of uncertified copy, No transcript


Re Parker (2008) COP 22/12/08This application concerned an EPA which had already been registered in 2007. The attorneys had signed the EPA on 25 December 1993 and the donor had signed later, on 13 January 1994. The court held that the EPA was valid, applying the unreported decision of Knox J in Re R dated 23 February 1988. (OPG summary.) 2009‑11‑29 22:07:18 2008 cases, Brief summary, EPA cases - all, EPA cases - whether the instrument was validly executed, No transcript


Re Wealleans (2008) COP 8/5/08The witness had not stated her address in the instrument, as required by Regulation 3(1) of the Enduring Powers of Attorney (Prescribed Form) Regulations 1990. On the application of the attorney the court declared pursuant to MCA Schedule 4 paragraph 2(4) that the EPA was “procedurally valid”. [Paragraph 2(4) provides that, if an instrument differs in an immaterial respect in form or mode of expression from the prescribed form it is to be treated as sufficient in point of form and expression]. [OPG summary - EPA case.] 2009‑11‑29 22:05:40 2008 cases, Brief summary, EPA cases - all, EPA cases - whether the instrument was validly executed, No transcript


Re Furlow (2009) COP 1/10/09The donor appointed X and Y to act jointly and severally. He included the following provision: "X shall act with general authority on my behalf in relation to all my property and affairs. Y shall act with authority to do the following on my behalf: To deal with my bank accounts and savings and investments in relation to my bank accounts, savings accounts and investments." He then added: "Y may deal with my bank investments subject to my prior approval." On the attorney's application, both provisions were severed. The first was incompatible with a joint and several appointment (as one attorney had more limited powers than the other), and the second was unworkable after the donor's loss of capacity. [OPG summary.) 2009‑11‑26 00:01:19 2009 cases, Brief summary, EPA cases - all, EPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript


Re Ellis (2009) COP 17/11/09The donor appointed his wife as the original attorney and then appointed his two children as substitute attorneys to act in the event that the original attorney should be unable to act. However, the donor failed to specify whether the substitute attorneys should act jointly or jointly and severally. On the application of the attorneys, the appointment of the substitute attorneys was severed. Although the decision in Re J confirmed that substitute attorneys may be appointed in an EPA, the appointment of two or more substitutes is invalid if the donor has not specified that they are to act either jointly or jointly and severally. [OPG summary - EPA case.] 2009‑11‑25 23:56:25 2009 cases, Brief summary, EPA cases - all, EPA cases - appointment by donor of substitute attorneys, No transcript


Re Harries (2009) COP 22/6/09 11613871The witnesses to an EPA had handwritten their names but not separately signed the form, so the OPG had refused to register the EPA. The court held that the difference between a handwritten name (as opposed to a typed one) and a signature is immaterial, and ordered that the EPA be registered. 2009‑09‑27 15:48:53 2009 cases, Brief summary, EPA cases - all, EPA cases - whether the instrument was validly executed, Transcript


Re J (Enduring Power of Attorney) [2009] EWHC 436 (Ch)An Enduring Power of Attorney appointing successive or alternative attorneys is valid if it is stated for each set of attorneys, in the event that they exercise the power, whether they must exercise it jointly or jointly and severally. 2009‑03‑12 19:40:15 2009 cases, Brief summary, EPA cases - all, EPA cases - appointment by donor of substitute attorneys, Transcript


Article titles

The following 58 pages are in this category.

R