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.

Summary

The EPA in question stated:

"I … appoint my wife [W] to be my Attorney for the purposes [of the] Enduring Powers of Attorney Act 1985 but if she shall have predeceased me or shall be unable to act or to continue to act as my Attorney whether registered or unregistered then in the alternative I appoint my son [A] and my son [B] and my son [C] jointly and severally to be my attorney(s) for the purpose of the Enduring Powers of Attorney Act 1985 with general authority to act on my behalf in relation to all my property and affairs."

No new EPAs can be created, but existing ones can still be registered and are governed by Schedule 4 Mental Capacity Act 2005, which substantially re-enacts the Enduring Powers of Attorney Act 1985.

Paragraph 20 of Schedule 4 MCA 2005 states:

An instrument which appoints more than one person to be an attorney cannot create an enduring power unless the attorneys are appointed to act—
(a) jointly, or
(b) jointly and severally."

The Office of the Public Guardian argued that a purported EPA appointing successive or alternative attorneys is invalid because the requirements of paragraph 20 are not satisfied (i.e. not all of the attorneys are appointed to act either jointly or jointly and severally). This argument was rejected.

Other

Judgment date: 12 March 2009

Hearing date: 5th March 2009

Before: Lewison J

Ms Nicole Sandells (instructed by Moody and Woolley) for the Applicant

Mr David Rees (instructed by The Public Guardian) for the Respondent

OPG summary

This case is listed under the heading "Appointment of substitute attorneys" as "Re J (an order of Lewison J made on 12 March 2009 in the High Court)" and is summarised as follows: "The judge decided that the donor of an EPA may validly appoint substitute attorneys in the same instrument. He also decided that the former practice of the Court of Protection before 1 October 2007 of registering some such powers with the "qualified" stamp (which limits registration to a particular attorney) was wrong. The registration must be unqualified. The Court of Protection at Archway has ordered severance of the appointment of a substitute attorney on several occasions since 1 October 2007, but applications for severance are no longer necessary as a result of the High Court decision."

Summary from Court of Protection 2009 Report

The judge saw no reason why the Public Guardian should not register an enduring power of attorney in which there was the following successive appointment: “I … appoint my wife [W] to be my Attorney for the purposes [of the] Enduring Powers of Attorney Act 1985 but if she shall have predeceased me or shall be unable to act or to continue to act as my Attorney whether registered or unregistered then in the alternative I appoint my son [A] and my son [B] and my son [C] jointly and severally to be my attorney(s) for the purpose of the Enduring Powers of Attorney Act 1985 with general authority to act on my behalf in relation to all my property and affairs.”

Citations

[2009] WTLR 435, [2009] 2 All ER 1051, [2009] EWHC 436 (Ch)B

Duplicate Bailii citation number: [2009] EWHC 436 (COP)B

External links

Bailii

Summary on OPG section of Justice website†.This is a link to an archived version of the web page (archived on 6/10/14).

Court of Protection: 2009 Report - published 10/6/10 - Summary on page 15