Re Sporne (2009) COP 13/10/09

The instrument had two defects: (i) the certificate provider had failed to tick the first two mandatory boxes in Part B, and (ii) the attorney had executed Part C before the certificate provider had signed Part B, contrary to Regulation 9 of the LPA, EPA and PG Regulations 2007. The Public Guardian's normal practice in such a case is to request fresh Parts B and C, but the donor had lost capacity. The attorney applied to court for the determination of the validity of the instrument. The court order recorded that, while the court could have exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA in respect of the defect in Part B of the instrument, it could not exercise any discretion to validate a significant procedural error in respect of the requirements for the completion and execution of Parts A, B and C. It further recorded that the errors could not now be rectified as the donor had lost capacity. The court, therefore, refused to direct registration of the instrument. [Paragraph 3(2) provides that the court may declare that an instrument which is not in the prescribed form may be treated as if it were, if it is satisfied that the persons executing the instrument intended it to create a lasting power of attorney]. [OPG summary - LPA case.]

Note

The summary above is taken from the OPG website. It is listed under the heading "Whether the instrument has been correctly executed" as "Re Sporne (an order of District Judge S E Rogers made on 13 October 2009)".

External link

No Bailii link (no transcript)

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 This is a link to an archived version of the web page (archived on 6/10/14).