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Category

LPA cases - appointment of substitute by an attorney

The new database structure introduced in 2019 is more useful than this Category page: see Special:Drilldown/Cases.

The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.

Case and summary Date added Categories
Re Goodwin [2013] MHLO 86 (LPA)The donor appointed three attorneys and two replacements. Regarding the replacements, she directed that if one ceased to act the other could act alone, and added: "She should also make every effort to find one or two replacement attorneys to take over her responsibilities in the event of her own death, or if she no longer has the mental capacity to carry on, so that there is a continuing 'Lasting Power of Attorney' in place during the donor's lifetime." On the application of the Public Guardian this provision was severed on the ground that section 10(8)(a) of the MCA invalidates any provision in an LPA giving an attorney power to appoint a substitute or successor. [OPG summary - LPA case.] 2013‑09‑07 22:39:42 2013 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, No transcript


Re Clare (2011) COP 8/9/11The donor made two LPAs, each appointing an attorney and a replacement attorney. In each she directed as follows: "My Attorney may at any time appoint a substitute to act as my Attorney and may revoke any appointment without giving a reason. Each 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 the Public Guardian the provision was severed as being a plain breach of section 10(8)(a) of the MCA, which provides that an LPA cannot give the attorney power to appoint a substitute or successor. [OPG summary - LPA case.] 2011‑11‑30 21:48:37 2011 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, No transcript


Re Putt (2011) COP 22/3/11(1) Two LLP partners were appointed attorneys; the certificate provider, as an associate at the same firm, was ineligible to act; (2) A direction that 'My attorneys (or any of them) may delegate in writing any of his, her or their functions to any person and shall not be responsible for the default of that person (even if the delegation was not strictly necessary or expedient) provided that he, she or they took reasonable care in his, her or their selection and supervision' was 'not simply contrary but almost repugnant to the special relationship of personal obligation and faith that one might reasonably expect to exist between a donor and the attorney of an LPA'. 2011‑05‑26 20:07:42 2011 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, LPA cases - eligibility of certificate provider, Transcript


Re Williams (2010) COP 1/12/10The donor appointed three attorneys to act jointly. She then added: "The attorneys are only to make decisions jointly and should any of the attorneys die within my lifetime I wish for their personal representative to take over as my attorney in their place." On the application of the Public Guardian the court severed this provision on the ground that section 10(8)(a) of the MCA provided that an LPA instrument could not give the attorney power to appoint a substitute or successor. [Note: The provision could also be viewed as incompatible with the nature of a joint appointment.] [OPG summary - LPA case.] 2011‑01‑07 20:05:06 2010 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, No transcript


Re Swift (2010) COP 30/3/10The donor had been appointed to act as attorney under LPAs made by his wife. In his own LPA for property and financial affairs he stated as follows: "In the event that I become incapacitated and am unable to take decisions in my role as Attorney to my wife, I appoint both my Attorneys as Guardians of my wife in order that they may, together, take decisions about her property and affairs." He included an equivalent provision in his LPA for health and welfare. On the application of the Public Guardian the court severed these provisions as being ineffective because the MCA does not permit an attorney to appoint a substitute or successor to himself. (OPG summary - LPA case.) 2010‑04‑07 21:58:31 2010 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, No transcript