Category

LPA cases - survivor of original joint appointment cannot act with replacement

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Case and summary Date added Categories
Re Krajicek [2012] MHLO 95 (LPA)The donor made two LPAs appointing two attorneys, A and B, and two replacement attorneys, C and D, and directed them to act jointly for some decisions and jointly and severally for other decisions. She provided that "If either of the original attorneys is unable to act then C should step in. D is to step in if the second attorney is unable to act." On the application of the Public Guardian the provision was severed because it appeared to provide for the replacement attorney to act jointly with the survivor of the original attorneys, which was incompatible with the appointment of the attorneys to act jointly for some decisions. [OPG summary - LPA case.] 2012‑09‑30 19:22:02 2012 cases, Brief summary, LPA cases - all, LPA cases - survivor of original joint appointment cannot act with replacement, No transcript


Re Salter (2011) COP 18/8/11The donor appointed primary attorneys to act jointly in some matters and jointly and severally in others, and also appointed replacement attorneys. She then directed as follows: "For decisions where my attorneys must act jointly, replacement attorney 1 should replace attorney 1, when he is unable to act and replacement attorney 2 should replace attorney 2 when he is unable to act." On the application of the Public Guardian this provision was severed because the effect of one primary attorney ceasing to act would be that the other primary attorney could no longer act in the matters to be decided jointly, but the direction contemplated that the first replacement would act with the surviving primary attorney. [OPG summary - LPA case.] 2011‑09‑30 23:07:45 2011 cases, Brief summary, LPA cases - all, LPA cases - survivor of original joint appointment cannot act with replacement, No transcript


Re Druce (2011) COP 31/5/11The donor made LPAs appointing A and B as her attorneys, to act jointly, and C and D to be her replacement attorneys. She then imposed the following restriction: "Both C and D should jointly replace the first attorney who needs replacing so that on the first replacement there will be 3 acting attorneys. No further replacements will be needed." On the application of the Public Guardian the court severed the restriction. There is nothing in section 10(8)(b) of the MCA, which deals with the appointment of replacement attorneys, to displace the fundamental principle that the survivor of joint attorneys cannot act. Where one of the original joint attorneys can no longer act, the replacement(s) will step in and act alone, to the exclusion of the surviving original attorney. This ruling reflects what is stated to be the "better view" in paragraph 4.44 of Cretney and Lush on Lasting and Enduring Powers of Attorney (6th edition). [OPG summary - LPA case.] 2011‑09‑30 23:05:32 2011 cases, Brief summary, LPA cases - all, LPA cases - survivor of original joint appointment cannot act with replacement, No transcript


Article titles

The following 3 pages are in this category.