Enduring Powers of Attorney

Summaries of orders made by the Court of Protection under the Mental Capacity Act in Enduring Power of Attorney cases.

Whether the instrument was validly executed

Re Wealleans (an order of District Judge S E Rogers made on 8 May 2008)
The 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].

Re Parker (an order of District Judge Keeley Bishop made on 22 December 2008)
This 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.

Re Harries (an order of the Senior Judge made on 22 June 2009)
The witnesses to the signatures of the donor and the attorney left the space for the signature of the witness blank, and wrote their names (and addresses) in capital letters in the space for the name and address of the witness. On the application of the attorney it was held that the instrument was a valid EPA. The judge added that the decision would have been otherwise if the names and addresses of the witnesses had been typed.

You can view a copy of the full order in the section 'Other orders of interest made by the Court of Protection since 1 October 2007'

Re Lodge (an order of District Judge S E Rogers made on 6 August 2010)
Unfortunately 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 March 2011 the previous order was affirmed.

You can view a copy of the full order in the section Other orders of interest made by the Court of Protection since 1 October 2007.

Re Devine (an order of District Judge Eldergill made on 13 October 2010)
The 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.

Re Freeman (an order of District Judge Ralton made on 7 September 2010)
The 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.]

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Immaterial differences from the prescribed form

Re Newman (an order of the Senior Judge made on 30 July 2012)

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.

You can view a copy of the full order in the section Other orders of interest made by the Court of Protection since 1 October 2007.

Registration of uncertified copy

Re Vallet (an order of District Judge S E Rogers made on 27 January 2009)
The 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.

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Delegation of trustee functions

Re Heartfield (an order of the Senior Judge made on 17 June 2008)
The 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.
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Appointment by donor of substitute attorneys

Re J (an order of Lewison J made on 12 March 2009 in the High Court)
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.

Re Ellis (an order made by the Senior Judge on 17 November 2009)
The 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 (above) 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.

Re Bax ( and order of District Judge S E Rogers made on 22 October 2009)
The 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.

Re Farrow (an order of District Judge Eldergill made on 18 August 2010)
The 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.

Appointment of substitute by an attorney

Re Dickenson (an order of District Judge Hilder made on 12 November 2010)
The 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."

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Severance of restrictions incompatible with an EPA

Re Ditcham (an order made by the Senior Judge on 12 May 2009)
An 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.

Re King (an order of District Judge S E Rogers made on 14 July 2009)
An 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.

Re Viveash (an order of District Judge S E Rogers made on 21 September 2009)
An 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.

Re Donegan (an order of the Senior Judge made on 6 January 2011)
The 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.

Re Harris (an order of the Senior Judge made on 6 January 2011)
The 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.

Re Hollins (an order made by District Judge Jackson on 10 June 2009)
In 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:

"Extended powers to deal with my affairs.  My Attorney may take decisions on where I shall live (if I have become mentally incapable of taking these decisions for myself) provided that these decisions are in my best interests.  My Attorney may negotiate with Social Services and any other relevant authorities to secure the best treatment and accommodation on my behalf that can be obtained."

Power to consent to medical treatment.  My Attorney may give consent to medical treatment on my behalf provided that it is carried out to save my life or to ensure improvement or to prevent deterioration in my physical or mental health."

Extended power to make gifts.  My Attorney may make such gifts on my behalf as he sees fit to reduce the burden of Inheritance Tax on my estate provided that these are consistent with the provisions of my Will and provided that my lifestyle at the date of making the gift is in no way jeopardised by the making of the gift."

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.

Re Robinson (an order of District Judge S E Rogers made on 18 September 2009)
An 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).

Re Stevens (an order of District Judge Batten made on 11 January 2011)
The 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.

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Severance of restrictions incompatible with a joint and several appointment

Re Blair (an order of the Senior Judge made on 1 October 2008)
The 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.

Re Wills (an order of District Judge S E Rogers made on 20 November 2008)
The 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.

See also Re Newman

Re Bridge (an order of the Senior Judge made on 25 September 2009)
The 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.

Re Akpabio (an order of the Senior Judge made on 15 March 2010)
The 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.

Re Candy ( an order of the Senior Judge made on 18 March 2010)
The 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.

Re Dunningham (an order of District Judge S E Rogers made on 15 September 2009)
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.

[Note: compare Re Taylor (an order of District Judge Eldergill made on 7 December 2011) where, on similar facts, the court severed the words "jointly and severally".]

Re Porter (an order of District Judge S E Rogers made on 26 July 2010)
The 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.

Re Meaker (an order made by District Judge Ralton made on 16 June 2009)
The 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.

Re Pattison (an order of District Judge Hilder made on 11 May 2010)
The 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.

Re Rayner (an order of District Judge S E Rogers made on 9 July 2009)
The 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.

Re Furlow (an order made by District Judge SE Rogers on 1 October 2009)
The 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.

Re Haworth (an order of District Judge Mainwaring-Taylor made on 20 December 2010)
The 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.

Re Jarman (an order of District Judge Mainwaring-Taylor made on 8 August 2011)
The 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.

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Severance of restrictions incompatible with a joint appointment

Re Bainbridge (an order of the Senior Judge made on 10 March 2009)
The 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.

Re Berg (an order of the Senior Judge made on 31 December 2010)
The 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.

Re Shepherd (an order of Judge Rogers made on 13 March 2009)
The 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.

Re Williamson (an order of the Senior Judge made on 25 October 2010)
The 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.

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Severance of restriction fettering attorney’s authority

Re Corbett (an order of the Senior Judge made on 4 December 2008)
A 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.

Re Johnston (an order of District Judge S E Rogers made on 15 October 2012)
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. 

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Rectification

Re Portues (an order made by District Judge S E Rogers on 6 January 2009)
In 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.

Re Sawyer (an order made by District Judge S E Rogers on 31 March 2009)
In 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.

See also Re Newman

Re Smith (an order made by District Judge Mainwaring-Taylor on 7 December 2009)
In 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.

Re Orriss (an order of District Judge Ralton made on 20 October 2010)
By 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.

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Capacity to revoke EPA: test is not the same as for creation of LPA

Re Cloutt (an order of the Senior Judge made on 7 November 2008)
The 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.

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