Category

LPA cases - all

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Page and summaryDate added to siteCategories
Miles v The Public Guardian [2015] EWHC 2960 (Ch), [2015] MHLO 139 — "I have before me two appeals from decisions of Senior Judge Lush sitting in the Court of Protection, one in a case called Re Miles and one in a case called Re Beattie in both of which he was concerned with lasting powers of attorney either for property and financial affairs or for health and welfare matters. In each case the former power of attorney had been drafted by the same solicitor and contained provisions which the Judge was asked to rule on, as to whether they were effective." 2016-10-072015 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re CMW: Public Guardian v AM [2015] EWCOP 86, [2015] MHLO 130 — "This is an application by the Public Guardian to revoke a Lasting Power of Attorney ('LPA') for property and affairs. ... I am satisfied that Carla lacks capacity to revoke the LPA herself. ... I am also satisfied that the respondent has behaved in a way that contravenes his authority and is not in the donor's best interests. He has broken virtually every rule in the book and, having exhausted his mother's funds in order to meet his "life's requirements at that time", he blithely expects the taxpayers of Surrey to pick up the tab to meet his mother's care needs now. I have no hesitation in revoking the LPA and directing the Public Guardian to cancel its registration. I shall make a separate order appointing Michael Stirton as Carla's deputy for property and affairs." 2015-12-222015 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re OL [2015] EWCOP 41, [2015] MHLO 114 — "This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney ('LPA') for property and financial affairs because the attorneys have used their power carelessly and irresponsibly. I am satisfied that the attorneys have behaved in a way that contravenes their authority or is not in the donor's best interests. ... Their failure to keep accounts of the transactions carried out on the donor's behalf or to produce any record of her income and expenditure would alone be sufficient to warrant the revocation of their appointment. However, in this case both attorneys, and in particular DA, have compounded their culpability by taking colossal advantage of their position and obtaining personal benefits far in excess of the limited power that attorneys have to make gifts of the donor's property under section 12 of the Mental Capacity Act. DA has also failed to keep the donor's money and property interests separate from her own interests in respect of the ..→2015-12-212015 cases, LPA cases - all, LPA cases - other, No summary, Transcript
XZ v The Public Guardian [2015] EWCOP 35, [2015] MHLO 98 — "This is an application regarding the effectiveness of some provisions contained in a Lasting Power of Attorney ('LPA') for property and financial affairs. It is not a type of application for which permission would normally be given for a judgment to be published. However, paragraph 16 of the Practice Guidance (Transparency in the Court Of Protection) [2014] EWHC B2 (COP), [2014] MHLO 5, says that "permission to publish a judgment should always be given whenever the judge concludes that publication would be in the public interest." I can't imagine that the general public would have the slightest interest in this judgment, but its publication may be of interest to professionals who specialise in this area of the law and draft LPAs on a regular basis, and also to people who are considering making an LPA themselves, and for this reason I shall permit its publication. ... XZ wants his attorneys to act only when he lacks capacity. In his LPA he has described in intricate detail the ..→2015-11-132015 cases, Brief summary, LPA cases - all, LPA cases - other, Transcript
The Public Guardian v SR [2015] EWCOP 32, [2015] MHLO 96 — "This is an application by the Public Guardian for an order revoking a Lasting Power of Attorney ('LPA') for property and affairs and directing him to cancel its registration." 2015-11-13201 cases, LPA cases - all, LPA cases - other, Ranscript, Summary
Re DWA [2015] EWCOP 72, [2015] MHLO 92 — "On 1 October 2014 I made an order on the papers revoking a Lasting Power of Attorney ('LPA') for property and financial affairs in respect of one of three attorneys because I was satisfied that the donor was incapable of revoking the appointment herself and that the attorney in question had behaved in a way that contravened her authority or was not in the donor's best interests. This is an application by the attorney whose appointment was revoked for me to reconsider that decision pursuant to rule 89 of the Court of Protection Rules 2007." 2015-11-122015 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re AMH [2015] EWCOP 70, [2015] MHLO 90 — "This is an application by the Public Guardian to revoke a Lasting Power of Attorney ('LPA') for property and financial affairs." 2015-11-122015 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re ARL [2015] EWCOP 55, [2015] MHLO 86 — "This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney ('LPA') for property and financial affairs." 2015-10-312015 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re EL: Public Guardian v CS [2015] EWCOP 30, [2015] MHLO 56 — "This is an application by the Public Guardian for an order revoking a Lasting Power of Attorney ('LPA') for property and financial affairs and directing him to cancel its registration." 2015-07-202015 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re SM: Public Guardian v MO [2015] EWCOP 27, [2015] MHLO 54 — "This is an application by the Public Guardian for the revocation of a Lasting Power of Attorney ('LPA') for property and financial affairs." 2015-07-202015 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re ID (Revocation of LPA) [2015] EWCOP 19, [2015] MHLO 28 — "This is an application by the Public Guardian for the revocation of a Lasting Power of Attorney." 2015-03-242015 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re BN [2015] EWCOP 11, [2015] MHLO 22 — "This is an application under rule 89 of the Court of Protection Rules 2007 for me to reconsider an order I made on the papers. ... BN does not lack capacity to revoke the LPAs and, indeed, she has no wish to revoke them, so the court is powerless to intervene. ... CN acted in bad faith, was motivated by spite, and was unsuccessful. BN responded to the application by taking advice from her solicitors, who sensibly narrowed the matter down to a single issue. It would be unjust to expect BN to pay the legal costs she had to incur in order to resist such an unmeritorious application." 2015-03-242015 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re GW [2015] EWCOP 9, [2015] MHLO 20 — "This is an application by the Public Guardian to revoke a Lasting Power of Attorney for property and financial affairs because the attorney has behaved in a way that contravenes his authority and is not in the donor's best interests." 2015-03-242015 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re SB: Public Guardian v BB [2015] EWCOP 7 [2015] MHLO 15 — "This is an application to revoke a Lasting Power of Attorney for property and financial affairs because the attorneys have behaved in a way that contravenes their authority and is not in the donor's best interests. It is also a contested application as to who should be appointed as SB's deputy for property and affairs in place of the attorneys." 2015-02-122015 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re EG: Public Guardian v GB [2015] EWCOP 6, [2015] MHLO 14 — "This is an application by the Public Guardian to revoke a Lasting Power of Attorney for property and financial affairs ('LPA') because the attorneys have behaved in a way that contravenes their authority and is not in the donor's best interests." 2015-02-122015 cases, LPA cases - all, LPA cases - other, No summary, Transcript
The Public Guardian v VT [2014] EWCOP 52, [2014] MHLO 129 — This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney ('LPA') for property and financial affairs on the ground that the donee of the power has behaved in a way that contravenes her authority or is not in the donor's best interests. 2014-12-312014 cases, LPA cases - all, LPA cases - other, No summary, Transcript
The Public Guardian v CT [2014] EWCOP 51, [2014] MHLO 128 — "This is the first occasion on which a respondent has sought an order for costs against the Public Guardian in respect of a safeguarding application regarding the respondent's conduct as the donee of a Lasting Power of Attorney." 2014-12-312014 cases, COP costs cases, LPA cases - all, LPA cases - other, No summary, Transcript
The Public Guardian v Marvin [2014] EWCOP 47, [2014] MHLO 125 — "This is an application by the Public Guardian to revoke two Lasting Powers of Attorney – an LPA for property and financial affairs and an LPA for health and welfare. The attorney concedes that he has contravened his authority and failed to act in the donor's best interests in respect of the donor's property and affairs, and has no objection to court revoking the LPA for property and financial affairs. However, he does not consider that he has contravened his authority or failed to act in the donor's best interests with regard to the donor's health and welfare." 2014-12-302014 cases, LPA cases - all, LPA cases - other, No summary, Transcript
The Public Guardian v AW (Application to revoke LPA) [2014] EWCOP 28, [2014] MHLO 116 — "This is an application by the Public Guardian to revoke and cancel the registration of a Lasting Power of Attorney ... Having regard to all the circumstances, therefore, I shall revoke AW's appointment as attorney because I am satisfied that: (a) OB lacks capacity to revoke the LPA herself; and (b) AW has contravened her authority by taking advantage of her position." 2014-12-302014 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re PC: Public Guardian v AC [2014] EWCOP 41, [2014] MHLO 109 — "This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney ('LPA') for property and financial affairs and to direct him to cancel its registration." 2014-11-062014 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Public Guardian v Miles [2014] EWCOP 40, [2014] MHLO 105 — "This is an application by the Public Guardian for the court to determine the validity of a provision in a Lasting Power of Attorney... The question I am required to answer is whether the donor of an LPA can appoint more than one attorney to act jointly with survivorship by expressly re-appointing the continuing attorney or attorneys." 2014-11-042014 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re JL (Revocation of LPA) [2014] EWCOP 36, [2014] MHLO 97 — "I am satisfied that (1) AS has behaved in a way that contravenes her authority and is not in JL's best interests, and (2) JL lacks capacity to revoke the LPA herself, and I shall revoke the LPA for her. With regard to the appointment of a deputy for property and affairs, I consider that it would be in JL's best interests to appoint the authorised officer for property and affairs deputyships of Essex County Council as her substantive deputy. He is already acting as her interim deputy by virtue of my order of 10 June 2014 and JL has expressed a preference that he should continue to manage her funds." 2014-10-092014 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re DP: Public Guardian v John Marney [2014] EWCOP 7, [2014] MHLO 69 — "The Senior Judge concluded that JM was in breach of his fiduciary duties as an attorney and that he had "behaved in a way that has both contravened his authority and has not been in DP's best interests. ... At the end of the day the issue is really very simple. Why should JM be protected from the normal consequence of a judicial finding of misconduct, namely the identification of the wrongdoer in a published judgment? Nothing JM has said, or which could sensibly be put forward on his behalf, provides any reason why, looked at from his perspective, he should be spared the consequences of his misbehaviour. If publication of his identity and re-publication of the Senior Judge's findings, lowers JM in the estimation of right-thinking readers of the Daily Mail or other organs of the media, then so be it. He has only himself to blame. Why should JM be any more entitled to anonymity, just because the only judicial finding thus far has been made by the Court of Protection, than he would be ..→2014-08-012014 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re VH (Revocation of Lasting Power of Attorney) [2014] EWCOP 15, [2014] MHLO 63 — "This is an application by the Public Guardian to revoke and cancel the registration of a Lasting Power of Attorney for property and financial affairs. ... Because of DH's lack of credibility, his inexperience in assessing capacity, his vested interest in the outcome, and because of the complicated nature and effect of the particular transaction that he required VH to enter into, I prefer the Special Visitor's opinion that she probably lacked capacity to DH's bold assertion that his mother 'fully understood what she was doing' when she entered into the mortgage and handed over to him the money that had been advanced by Barclays Bank. I am not satisfied that on 21 October 2011 VH had the capacity to enter into the transaction, which not only severely depleted her capital but also had adverse impact on her income, and I am not prepared retrospectively to approve the gift because it was neither reasonable nor affordable. VH may need these funds in future to pay for her care, either in ..→2014-08-012014 cases, LPA cases - all, LPA cases - other, No summary, Transcript
LB Redbridge v G (No 5) [2014] EWCOP 17, [2014] MHLO 53 — (1) Best interests: "I have to conclude that it is not in G's best interests to have C and F [who had insinuated themselves into her home as carers] remaining in her home. I weigh against her expressed wishes and feelings the detrimental effect that C's manipulative and intimidating behaviour has already had on G's emotional well-being and mental capacity, the isolation, the fear and the fact that it is C's behaviour, assisted by F who has supported her throughout, that has caused these proceedings and the gross intrusion into G's life that this case and the additional media attention have brought. It is intended that G should now be allowed to be at peace in her own home as she wants." (2) Residence: "I have already made an order that C and F are to leave the house. The couple have never had any right to reside there in any event there except as permitted by G. G lacks the capacity to decide who she has contact with so that permission is no longer a valid reason for C or ..→2014-07-282014 cases, 39 Essex Street summary, LPA cases - all, LPA cases - other, Other capacity cases, Transcript
The Public Guardian v JW [2014] EWCOP B24 , [2014] MHLO 34 (COP) — "In his application to the court, the Public Guardian sought two orders. The first was for the revocation of the LPA and the second was for the appointment of a panel deputy." 2014-06-082014 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re MRJ (Reconsideration of Order) [2014] EWCOP B15, [2014] MHLO 27 — "This is an application to reconsider an order I made on 27 September 2013: (a) suspending the applicants from acting as MRJ's attorneys under a Lasting Power of Attorney ('LPA') for property and financial affairs until further order; and (b) appointing the authorised officer of Suffolk County Council as MRJ's interim deputy with instructions to investigate the applicants' management of her finances. ... In my judgment, the revocation of the LPA is in MRJ's best interests. It is in accordance with the law, and it is a necessary and proportionate response for the prevention of crime and for the protection of MRJ's right to have her financial affairs managed competently, honestly and for her benefit." 2014-05-102014 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re Davies [2012] MHLO 184 (LPA) — The donor appointed four attorneys, A, B, C and D, to act jointly and severally, and imposed the following restriction: "The appointment of C and D shall not take effect unless I am mentally and/or physically incapable of managing my affairs and the appointment of C shall not take effect unless she has been in my employment within the period of one month preceding my loss of capacity to manage my affairs." This restriction was severed on the ground that the appointments of co-attorneys cannot be activated at different times. [OPG summary - LPA case.] 2014-04-292012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Buckley [2013] MHLO 144 (LPA) — The donor made an LPA for property and financial affairs and included the following provision: "Assets should be used firstly to ensure the well being and comfort of [my wife] and secondly to meet any urgent need of the families of the Attorneys and thereafter managed until distributed in accordance with the terms of my will." On the application of the Public Guardian the provision was severed. Although the attorneys would have power to maintain the donor's wife (see Re Bloom above), this should not be the priority of the LPA because section 1(5) of the MCA provides that "An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests." The attorneys had no authority to meet the needs of their families, as the donor was not under any legal obligation to maintain them. Any maintenance of the families would be a gift which would potentially fall outside section 12 of the MCA 2005. [OPG summary - LPA case.] 2014-04-292013 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Rider [2013] MHLO 143 (LPA) — The donor made an LPA for property and financial affairs which included the following provision: "No political donations to be made other than to the conservative party." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. While section 12(2)(b) permits the making of gifts to charities (subject to certain conditions), donations to the conservative party, or any other political party, would not fall within that provision. [OPG summary - LPA case.] 2014-04-292013 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Barac [2013] MHLO 142 (LPA) — The donor made an LPA for property and financial affairs which included the following provision: "After having taken full regard for my financial welfare and security I want my attorneys to take sensible steps to protect my estate from the effects of taxation [e.g. Inheritance Tax] and be able to create Trusts where beneficial." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2014-04-292013 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Bishop [2013] MHLO 141 (LPA) — The donor appointed attorneys to act jointly and severally and included the following provision: "I direct that my attorneys shall endeavour to act jointly on decisions wherever possible. They must only act severally when all practicable steps to act jointly have been made without success. If an attorney must act severally then that attorney must consult the other before making the decision and keep the other informed of any decision made." On the application of the Public Guardian the provision was severed as being incompatible with a joint and several appointment. Although in the guidance section, it was expressed in mandatory terms and was in substance a restriction. [OPG summary - LPA case.] 2014-04-292013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re DP (Revocation of LPA): OPG v John Marney [2014] EWHC B4 (COP), [2014] MHLO 8 — "Having regard to all the circumstances, therefore, I am satisfied that JM has behaved in a way that has both contravened his authority and has not been in DP's best interests. Accordingly, I revoke the LPA under section 22(4)(b) of the Mental Capacity Act 2005 and direct the Public Guardian to cancel the registration of the instrument under paragraph 18 of Schedule 1 to the Act. I also direct that a member of the panel of deputies be invited to make an application to be appointed as deputy to manage DP's property and affairs." 2014-03-042014 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re Boff [2013] MHLO 88 (LPA) — The donor of a Lasting Power of Attorney cannot appoint a replacement attorney to succeed another replacement attorney. 2013-09-132013 cases, Brief summary, LPA cases - all, LPA cases - replacement for replacement attorney, No transcript
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.] 2013-09-072013 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, No transcript
Re Griggs [2013] MHLO 85 (LPA) — In Re Griggs the donor appointed two primary attorneys and three replacements, to act jointly for some decisions and jointly and severally for other decisions. The donor directed that "My Remaining attorney is to choose which replacement attorney is to act as my other attorney." Although the provision could be viewed as incompatible with the manner of appointment, the court severed the provision for the reason given in the Public Guardian's application, which was that the donor should not leave it to the attorneys or replacement attorneys to decide which replacement is to act. [OPG summary - LPA case.] 2013-09-072013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Baxter [2013] MHLO 75 (LPA) — The donor of a Health and Welfare LPA included the following provision: "My attorneys shall have no power to act until they have reason to believe that I have become or that I am becoming mentally incapable of managing my own affairs or that I have become physically handicapped to such a degree that I cannot look after my affairs without significant inconvenience discomfort or difficulty." On the application of the Public Guardian the words "or that I am becoming" and "or that I have become" to "difficulty" were severed. Section 11(7)(a) of the MCA provides that decisions concerning the donor's health and welfare may not be made under an LPA "in circumstances other than those where [the donor] lacks, or the donee reasonably believes that [the donor] lacks, capacity." As previously held in Re Azancot (2009) COP 27/5/09, the donor may not provide for decisions to be made by the attorney when the donor lacks physical capacity but not mental capacity. The words "or that I am ..→2013-08-122013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re Spaas [2013] MHLO 74 (LPA) — The donor of a Health and Welfare LPA included the following provision: "If I become completely mentally or physically incapable for example being unable to recognise my daughter then I wish steps to be taken to end my life as quickly and painlessly as possible. It that was not possible, I would wish the minimum medical intervention possible. I would not want my life unnecessarily prolonged." On the application of the Public Guardian the words from "steps to be taken" to "I would wish" were severed. The donor may have been envisaging assisted suicide, which is unlawful (see Re Gardner (2011) COP 6/7/11) or even expressing a wish for her life to be terminated by others in circumstances which would involve a criminal offence. [OPG summary - LPA case.] 2013-08-122013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re Martin [2013] MHLO 21 (LPA) — The donor appointed two primary attorneys, A and B, to act jointly and severally, and three replacement attorneys, C, D and E. He included a valid provision to the effect that the D should replace B if B was unable to act, and then directed as follows: "In the event of my first attorney being unable to continue, E should act as Assistant to C (1st Replacement Attorney), and in the event of C being unable to continue, he should assume the power of Attorney." On the application of the Public Guardian this provision was severed because (applying Re Baldwin, above) the MCA does not permit a replacement attorney to be replaced, nor is it possible to direct an attorney or replacement attorney to act as assistant to another attorney or replacement attorney. [OPG summary - LPA case.] 2013-03-262013 cases, Brief summary, LPA cases - all, LPA cases - replacement for replacement attorney, No transcript
Re Black [2013] MHLO 20 (LPA) — The donor, a solicitor, appointed A and B as attorneys, to act jointly and severally. She imposed the following restriction: "A has been appointed solely to manage ABC Solicitors to enable continuing management of the Practice. B has been appointed to deal with all other financial matters both personal and business related, which do not specifically require a Solicitor of the Supreme Court." On the application of the Public Guardian the restriction was severed because it was incompatible with a joint and several appointment. [OPG summary - LPA case.] 2013-03-262013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Property and Financial Affairs LPA, No transcript
Re Hart [2013] MHLO 19 (LPA) — The donor made an LPA for property and financial affairs. He was also the sole attorney under an EPA made by his wife and registered. In his LPA he authorised his attorneys to have access to his will and medical records, and then continued as follows: "This also applies to acting as Attorneys for my wife, whose EPA has been registered." On the application of the Public Guardian this provision was severed because an LPA may not be used to add anything to someone else's EPA. (The donor appears to have wrongly assumed that his own attorneys could take over his role as attorney for his wife.) [OPG summary - LPA case.] 2013-03-262013 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript
Re Buckley: The Public Guardian v C [2013] EWHC 2965 (COP), [2013] MHLO 13 — "This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney (‘LPA’) and to direct him to cancel the registration of the LPA. ... Having regard to all the circumstances, therefore, I am satisfied that: (a) the attorney has contravened her authority and acted in a way that is not in Miss Buckley’s best interests; (b) Miss Buckley is incapable of revoking the LPA herself; (c) the revocation of the LPA in order to facilitate the appointment of a deputy is both a necessary and proportionate response for the protection of Miss Buckley’s right to have her financial affairs managed competently, honestly and for her benefit, and for the prevention of crime; and (d) it is in Miss Buckley’s best interests that the court should revoke the LPA." 2013-03-262013 cases, LPA cases - all, LPA cases - other, No summary, Transcript
Re Edmonds [2012] MHLO 129 (LPA) — The donor appointed a sole attorney and then two replacements, the latter to act jointly for some decisions and jointly and severally for others. She then directed as follows: "I would like my replacement attorneys to act jointly as much as possible and always where any transaction is valued at more than £5,000." On the application of the Public Guardian the words "as much as possible and always" were severed on the ground that they were uncertain and incompatible with the appointment type. [OPG summary - LPA case.] 2012-12-182012 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
A, B and C v X, Y and Z [2012] EWHC 2400 (COP), [2012] MHLO 112 — The court considered X's capacity to marry, make a will or power of attorney, manage affairs, and litigate. (1) X did not lack capacity to marry. The basis for this assessment was correctly stated in Sheffield as follows: (a) it is not enough that someone appreciates that he or she is taking part in a marriage ceremony or understands its words; (b) he or she must understand the nature of the marriage contract; (c) this means that he or she must be mentally capable of understanding the duties and responsibilities that normally attach to marriage; (d) that said, the contract of marriage is in essence a simple one, which does not require a high degree of intelligence to comprehend, and the contract of marriage can readily be understood by anyone of normal intelligence. (2) The judge did not make a general declaration that X lacked testamentary capacity, but qualified this by saying that (a) there would be increasingly many times when X lacked such capacity, and (b) any will now made, ..→2012-11-122012 cases, Brief summary, LPA cases - all, LPA cases - capacity to make an LPA, Missing from Bailii, Other capacity cases, Transcript
Re Gunn [2012] MHLO 97 (LPA) — The donor made LPAs for property and financial affairs and for health and welfare. The donor's signature was witnessed in both LPAs, but in the health and welfare instrument the witness failed to state his address and registration of this LPA was refused by the Office of the Public Guardian. On the attorney's application for an order that the instrument should be treated as if it were in the prescribed form, the court exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA and declared that the instrument was to be treated as if it were an LPA for health and welfare. The court considered it relevant that the witness had stated his full address in the LPA for property and financial affairs which was executed on the same day. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument is in prescribed form, No transcript
Re Burdock [2012] MHLO 96 (LPA) — The donor made an LPA for property and financial affairs and included the following guidance: "(1) If the house is sold I intend to pay off Z's student loan completely. (2) I also intend to give my three daughters, or their issue, as follows: X £30,000, Y £30,000, Z £50,000. (3) The remainder to be used for my care and needs." On the application of the Public Guardian the provision was severed as it gave the attorneys greater gift making powers than are permitted under section 12 of the MCA 2005. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
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.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - survivor of original joint appointment cannot act with replacement, No transcript
Re Dowden [2012] MHLO 94 (LPA) — The donor made two LPAs in which she appointed a professional attorney and a lay attorney to act jointly and severally. She directed that the professional attorney should be paid fees "in keeping with the charging rate in force at the time the work is undertaken". She then directed that the lay attorney should be paid a reasonable hourly fee and stated that any sum paid "must be with the approval of my Solicitor/Attorney" and "will be at such rate as he feels is appropriate". On the application of the Public Guardian the provision relating to the lay attorney's fees being approved and set by the professional attorney was severed as being incompatible with a joint and several appointment. The judge added that, to have achieved the desired objective, the donor should have appointed the attorneys to act jointly for some decisions (in this case on agreeing an appropriate level of remuneration for the lay attorney) and jointly and severally for other decisions. ..→2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Sheppard [2012] MHLO 93 (LPA) — The donor of a health and welfare LPA included the following guidance: "My attorneys are to maintain the health and welfare needs of X." On the application of the Public Guardian the provision was severed as it is not open to a donor to require attorneys to make health and welfare decisions on behalf of a third party. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re Kerron [2012] MHLO 92 (LPA) — The donor made an LPA for health and welfare, and imposed the following restriction: "If assessed as requiring nursing/residential care I would like to move promptly to a home jointly chosen by myself and my attorneys." On the application of the Public Guardian the words "jointly" and "myself and" were severed on the ground that a health and welfare LPA can only be used when the donor lacks capacity, and if the donor lacked capacity she would not be able to choose a nursing or residential care home. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re Darlison [2012] MHLO 91 (LPA) — The donor made an LPA for property and financial affairs. In the guidance section she stated: "Oversee X's financial welfare. X is [my] daughter." On the application of the Public Guardian the guidance was severed on the ground that the donor of an LPA cannot authorise the attorneys to act in relation to the financial affairs of another person. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript
Re Norris [2012] MHLO 90 (LPA) — The donor made LPAs for property and financial affairs and for health and welfare and included the following guidance in both LPAs: "At all times to make decisions in the best interests of [my wife] during her lifetime." On the application of the Public Guardian the provision was severed as being potentially inconsistent with the requirement in section 1(5) of the MCA that any act done or decision made must be done or made in the donor's best interests. [OPG summary - LPA case.] 2012-09-302012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript
Re Harcourt [2012] MHLO 74 (LPA) — "This application relates to an investigation by the Office of the Public Guardian into the management of Mrs Harcourt’s property and financial affairs by her daughter under a Lasting Power of Attorney. It considers the powers of the OPG and the Court of Protection when an attorney impedes an investigation and the circumstances in which the court may revoke an LPA." 2012-08-162012 cases, Brief summary, LPA cases - all, LPA cases - other, Transcript
Re O'Brien [2012] MHLO 65 (LPA) — The donor of a property and financial affairs LPA included the following guidance: "My handicapped son should be adequately provided for." On the application of the Public Guardian this provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2012-06-232012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Strange [2012] MHLO 64 (LPA) — The donor of a property and financial affairs LPA included the following guidance: "I wish my attorneys to provide for the financial needs of my husband in the same manner that I might have been expected to do if I had capacity to do so." The Public Guardian asked the court to consider whether the guidance needed to be severed as potentially contravening section 12 of the MCA 2005. In the application the Public Guardian referred to the case of Bloom (above), noting that a wife had no common law duty to maintain her husband and that the husband's common law duty would be abolished when section 198 of the Equality Act 2010 came into force, but noting also that various other legislation (see below) imposed a duty on a wife to maintain her husband. The court did not sever the guidance and explained the position in the following terms: "In the context of clauses in an LPA in which the donor makes provision for the maintenance of his or her spouse, there should be no distinction between ..→2012-06-232012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Smith [2012] MHLO 63 (LPA) — The donor appointed two attorneys to act jointly and severally. The LPA was registered by oversight even though one attorney's signature had not been witnessed. The attorney applied for a declaration of validity, and the evidence was that the witness had been present when the attorney signed, but had not signed under the attorney's name. The court dismissed the application, holding that it had no jurisdiction to declare that the LPA was valid. The applicant was directed to return the instrument to the OPG so that his appointment could be marked as invalid in accordance with section 10(7) of the MCA 2005. [OPG summary - LPA case.] 2012-06-232012 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, No transcript
Re McGreen [2012] MHLO 62 (LPA) — The donor appointed A as attorney and B as replacement attorney and then provided as follows on the A2 continuation sheet: "If my Replacement Attorney is no longer a partner in the firm of XYZ Solicitors, I appoint in his place a suitably qualified partner of that firm or firm which has succeeded that firm and carries on its practice, to be my Replacement Attorney." (Only A and B had signed Part Cs.) The Public Guardian applied for severance of the provision on the ground that it was not possible to appoint a replacement attorney to take over from a replacement attorney (see Re Baldwin, below, under the heading "Replacement for replacement attorney".) The court severed the provision for that reason and also for the following reason: "Section 19(2) of the Mental Capacity Act 2005 states that, in respect of the appointment of deputies, 'the court may appoint an individual by appointing the holder for the time being of a specified office or position'. However, there is no comparable ..→2012-06-232012 cases, Brief summary, LPA cases - all, LPA cases - appointment of office holder as attorney, No transcript
Re Llewelyn [2012] MHLO 61 (LPA) — The donor appointed attorneys including her husband to act jointly in some matters and jointly and severally in other matters. She stated that decisions were to be made jointly and severally apart from a list of specified decisions which were to be made jointly, but added a proviso to the effect that, provided her husband was able to act as one of her attorneys, all decisions could be made jointly and severally. On the application of the Public Guardian the proviso was severed as being incompatible with an appointment to act jointly in some matters and jointly and severally in others. [OPG summary - LPA case.] 2012-06-232012 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
Re Phillips [2012] MHLO 60 (LPA) — The donor appointed three attorneys, A, B and C. She did not name any persons to be notified, and so there were two certificate providers. The Public Guardian refused to register on the ground that one certificate provider, X, was a member of the family of A. He was the unmarried partner of A but did not live at the same address. In his Part B certificate X said: "I am the partner of A and have known the donor for 3 years." The attorney applied to court for a direction to register and the Public Guardian was joined as respondent. The court decided that X was to be treated as a member of the family of A, and so the instrument could not be registered. The judge said: "In my judgment, anyone who describes himself in this context as the attorney's partner is courting trouble and automatically disqualifies himself from being a person who can give an LPA certificate. This applies regardless of whether he describes himself as the attorney's partner intentionally or inadvertently, whether ..→2012-06-232012 cases, Brief summary, LPA cases - all, LPA cases - eligibility of certificate provider, Transcript
Re Drew [2012] MHLO 45 (LPA) — The donor of a property and financial affairs LPA included the following guidance:" If my father is still alive then my trustees should continue with my contributions to his care (my records make clear from which account) and assume my role in financial responsibility for him." [The reference to "trustees" should have been to "attorneys".] The court severed the provision on the ground that it contravened section 12 of the MCA 2005. The order recited that the case of Bloom was distinguishable because in the present case the donor had no common law duty to make provision for her father's maintenance. [OPG summary - LPA case.] 2012-04-282012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Bloom [2012] MHLO 44 (LPA) — The donor of a property and financial affairs LPA included the following direction: "I direct my attorneys to use such of my capital and income as they shall at their discretion deem necessary to make provision for my wife's maintenance and benefit." The Public Guardian asked the court to sever either the entire direction or just the words "and benefit". The court severed only the words "and benefit" on the ground that they contravened section 12 of the MCA 2005. The order recited that the donor had a common law duty to make provision for his wife's maintenance. [OPG summary - LPA case.] 2012-04-282012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Batchelor [2012] MHLO 43 (LPA) — The donor of a property and financial affairs LPA included the following provision: "I would ask my attorneys to have regard to any separate guidance note which I may make from time to time and place with this Lasting Power of Attorney." On the application of the Public Guardian the provision was severed on the ground that it contravened the requirements of regulation 9 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007, which do not permit additions to be made to an LPA. [OPG summary - LPA case.] 2012-04-282012 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, No transcript
Re H [2012] MHLO 21 (LPA) — The donor used the 2007 version of the LPA prescribed form and failed to tick the box to confirm that she had read (or had read to her) the prescribed information on pages 2, 3 and 4. On the attorney's application the court was unable to find on balance of probability that the donor had read (or had read to her) the prescribed information. This was a failure of execution and the court had no discretion to uphold it. [OPG summary - LPA case.] 2012-03-192012 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, No transcript
Re Forrest [2012] MHLO 20 (LPA) — The donor included the following guidance: "I hereby express the wish that my Attorneys will continue to pay my contribution to the school fees of my granddaughters, A and B, as per my previous pattern of contributions." On the application of the Public Guardian the guidance was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2012-03-192012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Lane [2012] MHLO 15 (LPA) — The donor made an LPA on 3 May 2011 using the 2007 prescribed form. The transitional provisions of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment Regulations) 2009, which introduced new prescribed forms, provide that an instrument executed by the donor before 1 April 2011 on the 2007 prescribed form is capable of being a valid lasting power of attorney. The Public Guardian made an application to the court for the severance of an invalid restriction, and drew the court's attention to the date of execution, submitting that the 'old' forms were not materially different from the 'new' forms. The court accepted that the 'old' forms differed from the 'new' forms in an immaterial respect and were accordingly within paragraph 3(1) of Schedule 1 of the MCA, which provides that an instrument which differs in an immaterial respect in form or mode of expression from the prescribed form is to be treated by the Public Guardian as sufficient in point ..→2012-03-052012 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument is in prescribed form, No transcript
Re Tucker (2011) COP 9/12/11 — The donor appointed one attorney and one replacement attorney and then directed as follows: "My replacement attorney shall only act if my attorney is unable to act by virtue of:- (a) the power to the attorney is revoked by me; or (b) the power is terminated by reason of the death, disclaimer or other incapacity of my attorney to act as my attorney; whichever shall first occur. For the avoidance of doubt my replacement attorney shall act alone if my attorney is not able to act." On the application of the Public Guardian the words "by virtue of:- (a) the power to the attorney is revoked by me; or (b) the power is terminated" were severed because revocation of the attorney's appointment is not one of the events listed in section 13(6)(a)-(d) of the MCA that trigger the activation of the appointment of a replacement attorney. [OPG summary - LPA case.] 2012-01-092011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript
Re Evans (2011) COP 24/11/11 — The donor appointed A (his wife) and B as attorneys, to act jointly and severally, and C as replacement attorney. He then directed as follows: "My replacement attorney will replace both my attorneys and act alone if and when my wife becomes unable or unwilling to carry out her duties as my attorney." On the application of the Public Guardian the direction was severed because the donor was attempting to provide for attorney B to be replaced even though one of the triggering events for his replacement listed in section 13(6)(a)-(d) of the MCA had not occurred. [OPG summary - LPA case.] 2012-01-092011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript
Re Clare (2011) COP 8/9/11 — The 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.] 2011-11-302011 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, No transcript
Re Dhir (2011) COP 15/11/11 — The donor set out eight restrictions, one of which was: "My attorney must not sell any of my properties unless it is required for my wife's medical treatment." On the application of the Public Guardian the restriction was severed on the ground that it authorised the attorneys to make gifts beyond the scope of the statutory power set out in section 12 of the MCA 2005. [OPG summary - LPA case.] 2011-11-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Hamilton (2011) COP 25/10/11 — The donor appointed one primary attorney and one replacement attorney. On page 5 of the LPA the donor inappropriately ticked the box indicating that the attorneys were appointed to act jointly for some decisions and jointly and severally for other decisions, and continued: "My No 1 Attorney will make all decisions re my everyday expenses and decisions [and] will make joint decisions with the Replacement Attorney in reference to any large decisions re the selling of investments, property and the eventual need of a nursing home etc." On the application of the Public Guardian the provision was severed on the ground that, having appointed the attorneys to act successively, the donor could not authorise them to make any decisions concurrently, whether jointly or jointly and severally. [OPG summary - LPA case.] 2011-11-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript
Re Stewart (2011) COP 9/11/11 — The donor included the following direction in the guidance section: "I authorise my attorneys to refuse or consent to my deprivation of liberty." The Public Guardian applied for severance on the ground that: "The deprivation of the donor's liberty is only lawful if ordered by the court or done in accordance with the procedures prescribed by law under the Mental Capacity Act 2005 as amended by the Mental Health Act 2007. The donor does not have power to authorise her attorneys to consent to the deprivation of her liberty in the absence of a court order or going through the Deprivation of Liberty Safeguarding procedures." The court determined that the direction was invalid for the reasons given by the Public Guardian. [OPG summary - LPA case.] 2011-11-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re McGregor (2011) COP 16/11/11 — The donor appointed attorneys to act jointly in some matters and jointly and severally in others, and directed as follows: "Jointly - decisions on sale of house. Decisions on type of care received if no longer able to stay in own home. Severally - financial matters regarding bank accounts and general cash flow." On the application of the Public Guardian the words "decisions on sale of house" and "Severally - financial matters regarding bank accounts and general cash flow" were severed because they purported to give Health and Welfare attorneys authority to make decisions regarding the donor's property and financial affairs. (The result would be that, by implication, the attorneys would be able to decide jointly and severally all matters other than the type of care the donor would receive if no longer able to stay in his own home.) [OPG summary - LPA case.] 2011-11-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re Hurren (2011) COP 28/9/11 — The Public Guardian refused to register the instrument as an LPA because the Part B certificate had been signed before the donor signed Part A, in contravention of Regulation 9 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007. (The donor had subsequently lost capacity.) On the attorney's application, the court declared in the exercise of its discretion under paragraph 3(2) of Schedule 1 of the MCA 2005 that the instrument was to be treated as if it were in the prescribed form and directed registration. The Public Guardian applied to set aside the order on the ground that paragraph 3(2) did not apply in the case of defective execution. The court set aside the order, and confirmed that the discretion given to the court under paragraph 3(2) applies only to an instrument which is not in the prescribed form and does not apply to any prescribed requirements in connection with its execution. [OPG summary - LPA case.] 2011-11-142011 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, No transcript
Re Steiner (2011) COP 17/10/11 — The donor appointed two attorneys to act jointly. She then gave the following guidance: "Should the need arise relating to the management of my financial affairs and my business interests, whoever at the time is acting for me personally as my accountant or solicitor shall adjudicate over my personal financial interests and whoever is acting professionally for me in respect of my business interests either my accountant or solicitor shall adjudicate over my business interests." On the application of the Public Guardian the court severed the provision from the LPA on the ground that it could potentially oust the jurisdiction of the court. [OPG summary - LPA case.] 2011-11-142011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions fettering authority of an attorney, No transcript
Re Wormsley (2011) COP 24/10/11 — The donor appointed two primary attorneys and two replacement attorneys, and directed them to act jointly and severally. He further directed as follows: "If a replacement attorney is required to replace an original attorney, the two replacement attorneys shall decide which one of them shall serve as attorney." On the application of the Public Guardian the court severed the provision as being inconsistent with the joint and several appointment of the replacement attorneys. [OPG summary - LPA case.] 2011-11-142011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Clarke (2011) COP 19/9/11 — The donor made an LPA for property and financial affairs, appointing her husband and daughter as attorneys and her other two daughters as replacement attorneys. She also made an LPA for health and welfare, appointing her husband and three daughters as attorneys. When an application was made to register the instruments, the husband objected on the ground that the instruments had not been properly witnessed. He alleged that the witness had not been in the house when the donor signed, but had added his signature later. The court preferred the evidence of the witness and one daughter, to the effect that the donor had signed at the dining room table and that the witness was in an adjacent room and could see her sign through glass doors separating the two rooms. Applying the old case Casson v Dade (1781), the court held that the instruments had been properly witnessed. (The husband also objected on the ground that the donor lacked capacity to make an LPA, but this was also dismissed. The ..→2011-11-142011 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, Transcript
Re Gee (2011) COP 22/8/11 — The donor of a property and affairs LPA included the following guidance: "Although I authorise my Attorneys to make gifts of money to either grandchild in cases of extreme need (for which I rely on my Attorneys' discretion) no benefit directly or indirectly should go to my daughter. If my house has to be sold I authorise my Attorneys to distribute any furniture, household and personal effects to X, Y and my grandchildren as if I had died." In making the application the Public Guardian referred the court to the view expressed by the Law Commission in its report on Mental Capacity (Law Com. No. 231) to the effect that an LPA attorney could provide for the needs of others as part of his duty to act in the donor's best interests, even in the absence of an express provision such as is conferred on EPA attorneys. The Public Guardian asked the court to consider whether the view of the Law Commission could be relied on in cases where the donor contemplated that the attorneys could provide ..→2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Temple (2011) COP 10/8/11 — The donor of a property and affairs LPA included the following guidance: "My attorney is authorised to grant gifts of up to £5,000 for family and also to provide interest free loans of up to £10,000 for extreme need. Where possible loans to be repaid within one year with flexibility of terms allowed at my attorney's discretion." On the application of the Public Guardian the guidance was severed because it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Jackson (2011) COP 17/8/11 — The donor of a property and affairs LPA included the following guidance: "If my attorneys believe I lack mental capacity or am becoming mentally incapable of managing and administering my property and financial affairs then I wish them to realise all my stocks, shares and other investments and transfer the proceeds and the balances from all bank and other accounts in my sole name into a joint account in the names of myself and my wife to ensure that my wife has full access to all funds." On the application of the Public Guardian the guidance was severed because it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Fisher (2011) COP 28/7/11 — The donor included the following provision in his LPA: "I direct that if I lack mental capacity or for any other reason am unable to deal with my day to day financial affairs then my Attorney is to pay from my business the sum of £4,000 per calendar month into the bank account of my wife." On the application of the Public Guardian the provision was severed on the ground it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Walker (2011) COP 20/7/11 — The donor of a property and affairs LPA included the following provision in the guidance section: "To help my son X financially from my funds as and when he requires." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Salter (2011) COP 18/8/11 — The 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.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - survivor of original joint appointment cannot act with replacement, No transcript
Re Druce (2011) COP 31/5/11 — The 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.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - survivor of original joint appointment cannot act with replacement, No transcript
Re Brindley (2011) COP 11/5/11 — The donor appointed three attorneys, A, B and C, to act jointly and severally. She then imposed the following restriction: "C does not attain the age of 18 until 21.12.2012 upon which date along with A and B she will act jointly and severally as attorney." On the application of the Public Guardian the appointment of C was severed as invalid on the basis that it contravened section 10(1)(a) of the MCA. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - attorney or replacement attorney under 18, No transcript
Re Ingham (2011) COP 15/8/11 — The donor appointed four attorneys to act jointly for some decisions and jointly and severally for others. She then directed as follows: "A. While all attorneys are acting: 1. All may complete any transaction with a value not exceeding £2,500. 2. All must complete any transaction with a value exceeding £2,500. B. In the event that only two or three Attorneys remain capable of acting those Attorneys are bound by A1 and 2 above. C. In the event that only one Attorney remains capable of acting that Attorney has full powers to complete transactions of any value." On the application of the Public Guardian directions B and C were severed on the ground that they were incompatible with the joint aspect of the appointment: if one attorney ceased to act, the matters to be decided jointly would not be able to be decided by the continuing attorneys. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
Re Freeman (2011) COP 17/8/11 — The donor appointed A and B as attorneys to act jointly in some matters and jointly and severally in others. He specified that they were to act as follows: "Major capital expenses jointly. Day to day expenses A." In his application the Public Guardian submitted that the donor had not specified any decisions to be made jointly and severally and so the words "Day to day expenses A" should be severed, with the effect that decisions not specified to be taken jointly should by implication be taken jointly and severally. The court was also asked to sever the word "Major" on the ground of uncertainty. The court accordingly severed these words so that the attorneys were appointed to act jointly for "capital expenses" and (by implication) jointly and severally for everything else. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
Re Pugh (2011) COP 13/7/11 — The donor appointed three replacement attorneys to act jointly. She then completed the box on page 5 of the form (which should be completed only if the attorneys are to act jointly in some matters and jointly and severally in others) and directed as follows: "Where by this power I have appointed three replacement attorneys to act jointly on all occasions then I direct that if there is a dispute it is the majority decision of my three replacement attorneys that is to be followed and in the event that by reason of death or incapacity or other reason I only have two of my three replacement attorneys who are capable of acting then in the event of a dispute between my two continuing replacement attorneys it is the decision of the eldest that is to be followed." On the application of the Public Guardian the court severed the restriction as being incompatible with a joint appointment. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint appointment, No transcript
Re Wheeler (2011) COP 25/7/11 — The Public Guardian applied for the severance of an invalid clause in the LPA. The Senior Judge considered that another clause was also invalid, which was severed on the court's own initiative. The donor had provided the following guidance: "My attorneys may act on the contents of my will." The court's reason for severing the guidance was as follows: "The court considers that the meaning of this guidance is unclear and that it is probably void for uncertainty. Potentially it authorises the attorneys to distribute the donor's estate during his lifetime as if he were dead, which would be not only contrary to public policy but also contrary to the provisions of section 12 of the Mental Capacity Act 2005. A will speaks from death, and it is not a function of an attorney to act as the executor of the donor's will." [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Property and Financial Affairs LPA, No transcript
Re Hodgkiss (2011) COP 25/8/11 — The donor of a Health and Welfare LPA selected Option B, which states that the attorneys have no authority to give or refuse life-sustaining treatment. He then directed as follows: "Attorneys must consent to any life sustaining treatment if I am in a persistent vegetative state." On the application of the Public Guardian this provision was severed as being incompatible with his selection of Option B. The court added that, if the donor had wished to give his attorneys authority to consent to life-sustaining treatment if he were in a persistent vegetative state, he should have selected Option A. [OPG summary - LPA case.] 2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions relating to life-sustaining treatment, No transcript
Re Gardner (2011) COP 6/7/11 — The donor included the following statement in the guidance section of the instrument: "If I am suffering from a terminal illness I would ask that my attorneys assist me in travelling to a country where it is legal for me to take my own life should I choose to do so." On the application of the Public Guardian the court severed the guidance for the following reasons: (i) section 62 of the MCA 2005 provides that nothing in the Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (assisting suicide); (ii) the donor was purporting to authorise the attorneys to commit the criminal offence of assisting suicide, and the fact that a person who assists a suicide is not always prosecuted in England and Wales does not detract from the fact that it remains a criminal offence; (iii) although the statement appeared in the guidance section, it is not open to a donor to provide guidance to the attorneys relating to the ..→2011-09-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re Parsonage (2011) COP 1/4/11 — The donor of an LPA inserted the following restriction: "My replacement attorneys under this lasting power shall not have authority to do any act, or take any decision, under this lasting power except in those circumstances where I lack capacity or where the replacement attorneys reasonably believe that I lack capacity or when I have signed that I wish the lasting power to come into effect by signing the lasting power again." On the application of the Public Guardian the words "or when I have signed that I wish the lasting power to come into effect by signing the lasting power again" were severed on the ground that re-execution of the LPA by the donor after completion and registration would contravene the execution requirements for an LPA. [OPG summary - LPA case.] 2011-05-262011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with an LPA, 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'. 2011-05-262011 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, LPA cases - eligibility of certificate provider, Transcript
Re Cretney (2011) COP 24/2/11 — The donor made an LPA on the "new" form prescribed in 2009 but omitted the attorney's date of birth in Part A. The Public Guardian refused to register on the ground that the instrument differed materially from the prescribed form. On the application of the attorney (who was over 18) the court declared in the exercise of its discretion under paragraph 3(2) of Schedule 1 of the MCA that the instrument was to be treated as if it were in the prescribed form. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - date of birth of attorney missing, No transcript
Re Dadd (2010) COP 17/10/10 — The donor made an LPA using the "new" form presribed in 2009. She appointed two attorneys but provided no date of birth for either. The Public Guardian was willing to register in favour of one attorney because her title was given as "Mrs", so that it could reasonably be inferred that she was at least 18. It was overlooked that the other attorney was described in the instrument as the donor's husband. On the attorney's application the court directed registration. As it could be inferred from the instrument that both attorneys were at least 18, the instrument differed from the prescribed form in an immaterial respect within paragraph 3(1) of Schedule 1 of the MCA 2005. [OPG summary - LPA case.] 2011-03-182010 cases, Brief summary, LPA cases - all, LPA cases - date of birth of attorney missing, No transcript
Re Parker (2011) COP 18/2/11 — The donor of a Health and Welfare LPA appointed X and Y as attorneys to act jointly in some matters and jointly and severally in others. He then directed as follows: "I wish the prime responsibility for decisions in respect of my health to vest in X. My attorneys need only act jointly in the event of serious and/or life threatening conditions. In this case X should endeavour to contact Y but if she is, for whatever reason, unable to do so she may act on her own (severally) despite the serious and/or life threatening condition." On the application of the Public Guardian the last sentence of this direction was severed as being incompatible with the appointment to act jointly in some matters. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
Re Noel (2011) COP 31/1/11 — The donor appointed two attorneys to act jointly in some matters and jointly and severally in others. He then appointed X as replacement attorney. He directed that a decision to sell a named property " must be made jointly by all surviving attorneys including X". On the application of the Public Guardian the words "including X" were severed, as being incompatible with the manner in which the attorneys and replacement attorneys had been appointed. The court added that, to have acheived the desired objective, the donor should have appointed all three as attorneys (rather than two attorneys and a replacement) and directed them to act jointly in some matters and jointly and severally in others. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript
Re Scragg (2011) COP 1/2/11 — The donor of a property and affairs LPA (who lived abroad) gave detailed instructions to his attorney relating to all of his assets in the event of a return to England, and added that these instructions were "subject to the written consent of my daughter" (who was the replacement attorney and also the attorney under his Health and Welfare LPA). On the application of the Public Guardian the words "subject to the written consent of my daughter" were severed because the requirement that the attorney should obtain the consent of a third party before exercising his powers imposed an unjustifiable fetter on his authority. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions fettering authority of an attorney, No transcript
Re Knight (2011) COP 18/2/11 — The donor of a property and affairs LPA included the following provision in the guidance section; "I wish my attorneys, if they think fit, to pay my sister by way of gift the sum of £3,000 annually and to pay by way of gift the sum of £250 annually to my brother in law, my nephew, his spouse and all my nieces including spouses (other than to X), my great nephew and great niece, all of whom are listed on page A2 being the amounts of gifts exempt from inheritance tax under the current inheritance tax laws or such other annual sums by way of gift as shall for the time being be exempt from inheritance tax or other tax payable on death." On the application of the Public Guardian the provision was severed on the ground it contravened section 12 of the MCA 2005. Although the provision was expressed as guidance, it was not open to the donor to give guidance about gift making in terms going beyond the statutory power, and although it might be possible for the attorneys to make the desired ..→2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Careford (2011) COP 16/2/11 — The donor of a property and affairs LPA included the following provision in the guidance section; "While my husband is my attorney, he may use my own money and property for his benefit in any way he wishes. My replacement attorneys may use my money and property for the benefit of my husband in any way they think fit. All of my attorneys may make gifts to my husband from my estate." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. Although the provision was expressed as guidance, it was not open to the donor to give guidance about gift making in terms going beyond the statutory power. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Wheatley (2011) COP 31/1/11 — The donor of a property and affairs LPA included the following provision in the guidance section; "My attorneys will continue to make contributions to my grandchildrens' Child Trust Funds and any other saving/pension plans that I fund for their benefit." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. ALthough expressed as guidance, it was more in the nature of a direction. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Munn (2011) COP 28/1/11 — The donor of a property and affairs LPA included the follwoing provision in the guidance section; "My finances should be managed so that X can continue to live at [a named property] for as long as she wishes and receives income from all investments and holiday lettings." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. Although expressed as guidance, it was more in the nature of a direction. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Baker (2011) COP 4/2/11 — In Part A of the instrument the donor put his middle name in the box for "Last Name" and omitted his surname completely. As his middle name could have passed for a surname, this error was not noticed by anybody and the instrument was registered. The attorney applied for a declaration that the LPA was to be treated as valid under paragraph 3(2) of Schedule 1 of the MCA 2005, under which the court may declare that an instrument is to be treated as if it had been made in the prescribed form even though it differs in a material respect from the prescribed form. The court exercised its discretion under paragraph 3(2) because, although the error was material, it was satisfied that the instrument was intended to be an LPA. The Public Guardian was directed to amend the register and attach a note to the instrument to this effect. (Note: for a similar case concerning an EPA, see Re Orriss (2010) COP 20/10/10, under the "Rectification" heading.) [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - donor surname missing, No transcript
Re McKenna (2011) COP 1/2/11 — The donor purported to appoint a replacement attorney who, at the date the donor signed the instrument, was 16 years old. The donor added the following restriction; "My replacement attorney shall only act if she is over the age of 18." On the application of the Public Guardian the appointment of the replacement attorney was severed as it contravened section 10(1)(a) of the MCA 2005, which provided that an attorney must have reached 18. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - attorney or replacement attorney under 18, No transcript
Re Cranston (2011) COP 18/2/11 — The donor appointed attorneys to act jointly in some matters and jointly and severally in others. He included in the list of matters which should be decided jointly "changing my will". On the application of the Public Guardian these words were severed on the ground that an attorney has no authority to change a donor's will. An attorney may apply to the court for an order authorising the execution of a statutory will if a donor lacks testamentary capacity. [OPG summary - LPA case.] 2011-03-182011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Property and Financial Affairs LPA, No transcript
Re Scott (2011) COP 11/1/11 — The donor made an LPA for property and financial affairs, appointing A and B to act jointly and severally. She then imposed the following restriction: "In the event of there being any disagreement between A and B (as the attorneys for property and financial affairs) and C (as the attorney for health and welfare) over expenditure on my health or welfare then C's decision is to prevail." The Public Guardian applied for this restriction to be severed on the basis that Re Reading (above) showed that a donor could not require that a person who was not an attorney under the instrument should join in the making of decisions by the attorneys. The court dismissed the Public Guardian's application, considering that there was no reason in law why the donor of two seperate LPAs should not be able to provide that, in the event of a disagreement between the attorneys for property and financial affairs and the attorney for health and welfare, the decision of the attorney for health and ..→2011-01-302011 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions fettering authority of an attorney, No transcript
Re J (2010) COP 6/12/10 — Under MCA 2005 s22(3) ('Powers of court in relation to validity of lasting powers of attorney') the court can consider any past behaviour or apparent prospective behaviour by the attorney (not just behaviour as P's attorney); depending on the circumstances and gravity of any offending behaviour found, it can then take whatever steps it regards as appropriate in P’s best interests (this only arising if P lacks capacity) whether by revoking the power or by taking some other course. 2011-01-222010 cases, Brief summary, LPA cases - all, LPA cases - other, Transcript
Re Williams (2010) COP 1/12/10 — The 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.] 2011-01-072010 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, No transcript
Re Warren (2010) COP 10/12/10 — The donor appointed four attorneys, A, B , C and D, to act jointly for some decisions and jointly and severally for others. She imposed the following restriction: "All decisions will be made by my first attorney A unless and until such time that he no longer has the mental capacity to do so. Should A no longer have the mental capacity to make decisions the remaining attorneys will jointly make decisions regarding the house and property and jointly and severally make decisions concerning finance." On the application of the Public Guardian the words preceding "attorneys will jointly" were severed on the ground that, where attorneys were appointed to act jointly in some matters and jointly and severally in others, it was not open to the donor to provide that one attorney should act alone for so long as he was able to do so. The Senior Judge added that, to have achieved the desired objective, the donor should have appointed A as the sole attorney and the three others as replacement ..→2011-01-072010 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
Re Weyell (2010) COP 2/12/10 — The donor appointed three attorneys, A, B and C, to act jointly for some decisions and jointly and severally for others. He then imposed the following restrictions: (1) "Two out of three of my attorneys must act jointly in relation to any transaction with a value in excess of £5,000 and my attorneys may act jointly and severally in relation to everything else." (2) "I direct that when acting jointly and severally where possible my attorneys are to act in the following order of priority: firstly A, then B and then C." On the application of the Public Guardian the first restriction was severed as being incompatible with the joint aspect of the appointment. In the application the Public Guardian submitted that, while a direction that attorneys appointed to act jointly and severally must act in an order of priority would normally be regarded as incompatible with a joint and several appointment, the addition of the words "where possible" made the direction in effect a statement of ..→2011-01-072010 cases, Brief summary, LPA cases - all, LPA cases - severence of restrictions incompatible with an appointment to act jointly in some matters and jointly and severally in others, No transcript
Re Baker (2010) COP 12/11/10 — The donor of a property and affairs LPA included the following provision: "I authorise my Attorneys to make gifts from my assets on such terms and conditions as they think fit, for the purposes of inheritance tax planning, including but not restricted to the making of gifts in line with the annual lifetime gift allowance." On the application of the Public Guardian the provision was severed on the grounds that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2010-11-282010 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Jass (2010) COP 26/10/10 — The donor of a property and affairs LPA included the following provision: "I hereby authorise my attorneys to give gifts on my behalf at my attorneys' discretion up to the exempt amount permitted by sections 19 (Annual Exemption), 20 (Small Gifts) and 22 (Marriage/Civil Partnership Gifts) of the Inheritance Act 1984 (or such other legislation or provision as may supersede these sections) for the time being in force." On the application of the Public Guardian the provision was severed on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2010-11-282010 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Moore (2010) COP 26/10/10 — The donor appointed three attorneys to act jointly. She then imposed the following restriction: "At least two attorneys to act on any transactions". On the application of the Public Guardian the court severed the restriction as being incompatible with a joint appointment. [OPG summary - LPA case.] 2010-11-282010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint appointment, No transcript
Re Hartup (2010) COP 28/10/10 — (1) The donor appointed two attorneys, A and B, to act jointly and severally, and two replacement attorneys. He then imposed the following restriction: "My wife A is to take the lead in all decisions." On the application of the Public Guardian the restriction was severed as being incompatible with a joint and several appointment. (2) The donor made two LPAs, one for property and financial affairs and the other for health and welfare. In both instruments he appointed A (his wife) and B as primary attorneys, to act jointly and severally, and C and D as replacement attorneys. In the property and financial affairs instrument he imposed the following restriction: "Should my wife be unable to continue to act severally as my attorney, then B and my two replacement attorneys are to act on my behalf. They must act jointly in relation to decisions about selling my house or they may act jointly and severally in everything else." In the health and welfare instrument he imposed the following ..→2010-11-282010 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to how a replacement attorney may act, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Ferguson (2010) COP 26/10/10 — The donor appointed three attorneys, A, B and C, to act jointly and severally. She then imposed the following restrictions: "I wish my attorneys to act as follows: A to act independently. B and C to act only in the event that A is deceased or unable to act. In these circumstances B and C may act independently." "I wish my attorneys to act only when I lack capacity to act. A may judge for himself when I lack capacity to act. B and C must agree together that I lack capacity to act. Alternatively, should either of them wish, then at my expense they may seek medical and, if necessary, legal advice as to whether or not I have capacity to act." On the application of the Public Guardian both restrictions were severed as being incompatible with a joint and several appointment. [OPG summary - LPA case.] 2010-11-282010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Collis (2010) COP 27/10/10 — An application was made to the court to direct the Public Guardian to cancel the registration of an LPA on the grounds that the instrument was not a valid LPA because the Donor lacked capacity to create an LPA at the date of execution. In the course of his judgment the Senior Judge set out the law relating to capacity to create an LPA. [OPG summary - LPA case.] 2010-11-062010 cases, Brief summary, LPA cases - all, LPA cases - capacity to make an LPA, Transcript
Re John (2010) COP 14/10/10 — The donor made an LPA using the "old" form prescribed in 2007. She appointed an original attorney and a replacement attorney, but the replacement attorney's Part C omitted his date of birth, and it could not be inferred from the instrument that he was at least 18. The usual practice of the Public Guardian in such a case is to request a fresh Part C, but this could not be done because the donor had lost capacity (see Re Sporne (2009) COP 13/10/09). The instrument was registered, with registration being limited to the original attorney, but the attorney then applied to court to have the defective Part C "reinstated". The Public Guardian was joined as a party. The court ruled that the LPA was not in the prescribed form because of the failure to include the replacement attorney's date of birth. As the court was satisfied on the evidence that the replacement attorney was in fact at least 18, it exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA (which is set out ..→2010-10-272010 cases, Brief summary, LPA cases - all, LPA cases - date of birth of attorney missing, No transcript
Re Thrussell (2010) COP 12/10/10 — The donor directed her attorneys to consult with X "in respect of any major decision". On the application of the Public Guardian the court severed this provision on the grounds that it was so uncertain as to be unworkable. [OPG summary - LPA case.] 2010-10-272010 cases, Brief summary, LPA cases - all, LPA cases - severance of unreasonable, impractical or uncertain conditions, No transcript
Re Warner (2010) COP 31/8/10 — The donor made an LPA appointing A as the original attorney and B and C as replacement attorneys, the latter to act jointly. She imposed the following restriction in relation to the replacement attorneys: "If for any reason one of my replacement attorneys is unable or unwilling to act, the remaining replacement attorney is then permitted to act solely under my LPA". On the application of the Public Guardian the restriction was severed as being incompatible with the joint appointment of the replacement attorneys. [OPG summary - LPA case.] 2010-10-272010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint appointment, No transcript
Re M Crook (2010) COP 16/7/10 — The donor's Health and Welfare LPA included an invalid restriction. A further defect was that she had not entered the date on which she executed Part A of the instrument in section 10, nor had she dated section 5 when selecting Option A. The Public Guardian does not regard a failure to execute the Options section as invalidating the instrument, but a failure to date Part A will normally do so. However, in this case the Public Guardian was prepared to infer that both sections had been executed on 13 October 2009, as Continuation Sheet A1 had been signed on that date, and so was the Part B certificate. In addition, the certificate provider had witnessed the Part A signatures. When applying for severance of the invalid restriction, the Public Guardian requested the court to direct that Part A was to be treated as having been signed on 13 October 2009, to avoid any challenges by third parties. The court accordingly included a provision in the order to the effect that sections 5 and 10 ..→2010-09-022010 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, No transcript
Re Lan (2010) COP 10/8/10 — The donor appointed two attorneys to act jointly and severally. She then imposed the following restriction: "Any major decisions should be discussed between my attorneys so that a joint agreement to the matter can be achieved." On the application of the Public Guardian this restriction was severed as being incompatible with a joint and several appointment. [OPG summary - LPA case.] 2010-09-022010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Cotterell (2010) COP 3/8/10 — The donor appointed two attorneys to act jointly and severally, and imposed the following restriction: "My second named attorney may only act as my attorney if a general medical practitioner certifies that I am mentally incapable of managing my affairs and in this instance, if my first attorney is alive and mentally capable, may only act on my behalf in relation to a sale of the property which at that time is deemed to be my principal place of residence. If however my said first named attorney has passed away or is deemed by a general medical practitioner as incapable then my second named attorney may act generally on my behalf subject to no restrictions." On the application of the Public Guardian the restriction was severed as being incompatible with a joint and several appointment. [OPG summary - LPA case.] 2010-08-162010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re RC (Deceased); SC v LB Hackney [2010] EWHC B29 (COP) — LBH had successfully applied for a property and affairs LPA to be declared invalid and for residence orders; costs were awarded against the donee, SC; the costs order was appealed; subsequently RC died. (1) The court could hear the appeal against costs (but not other issues) after RC's death under its residual jurisdiction; this was so despite the only relevant rule being narrower in scope than to allow this. (2) The judge was wrong to hold that "the LPA was a personal welfare LPA, and therefore its general rule would fall within rule 157". (The general rules are rule 156, that P pay for property and affairs proceedings, and rule 157, that there be no order for costs in personal welfare proceedings.) (3) As a general rule the incidence of costs in cases where there is an LPA for health and welfare should not necessarily differ from the rule in property and affairs cases, subject to the provisions of rule 159 (departure from general rule if justified in circumstances). (4) ..→2010-08-102010 cases, COP costs cases, Detailed summary, LPA cases - all, Transcript
Re Davies (2010) COP 5/7/10 — The donor appointed two attorneys, A and B, to act jointly and severally. He then imposed the following restriction: "If in the unlikely event of A and B not being wholly in agreement, B is to defer to the wishes of A." On the application of the Public Guardian the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary - LPA case.] 2010-07-092010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re P Crook (2010) COP 2/7/10 — The donor appointed one primary attorney and three replacement attorneys, the latter to act jointly and severally. He then imposed the following restriction: "Provided I have more than two attorneys capable of acting under this power then any decision as to the exercise of any power or discretion reached by the majority of such attorneys (acting in their capacity as attorneys) shall bind all my attorneys to the extent that no attorney of mine can take issue with the decision reached by that majority." On the application of the Public Guardian the court severed the restriction as being incompatible with a joint and several appointment. [OPG summary - LPA case.] 2010-07-092010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re D'Argenio (2010) COP 9/6/10 — The donor made a property and financial affairs LPA and a health and welfare LPA. In both she appointed six attorneys to act jointly and severally. In the property and affairs LPA she imposed the following restriction: "My atorneys must act jointly in relation to decisions about selling my house. They may act jointly and severally in everything else." In the health and welfare LPA she imposed the following restriction: "My attorneys must act jointly in relation to decisions I have authorised them to make about life-sustaining treatment and where I live. They may act jointly and severally for everything else." On the application of the Public Guardian the court severed both restrictions as being incompatible with a joint and several appointment. [OPG summary - LPA case.] 2010-07-092010 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Swift (2010) COP 30/3/10 — The 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.) 2010-04-072010 cases, Brief summary, LPA cases - all, LPA cases - appointment of substitute by an attorney, No transcript
Re McAdam (2010) COP 29/3/10 — The donor had named X, one of two original attorneys (who had been appointed to act jointly and severally), as the only named person. On the application of the Public Guardian the court severed the appointment of X as attorney on the ground that the MCA does not permit an attorney to be a named person. The instrument was directed to be registered as an LPA appointing only the other attorney. (OPG summary - LPA case.) 2010-04-072010 cases, Brief summary, LPA cases - all, LPA cases - attorney or replacement attorney as a named person, No transcript
Re Saunders (2010) COP 30/3/10 — The donor appointed two attorneys and a replacement attorney. He stated that the replacement should act only if the power given to the original attorneys "is revoked by me" or terminated by death, disclaimer or incapacity. He further stated that the power of his attorneys "shall only come into force only if and when my attorneys have presented medical evidence to the Court and the Court are satisfied that I am or am becoming incapable by reason of mental disorder of managing and administering my property and affairs". On the application of the Public Guardian the condition requiring the attorneys to present medical evidence to the court was severed because, although it was not invalid, it imposed an unreasonable and impractical fetter on the attorneys. The words "is revoked by me" were also severed as being incompatible with section 10(8)(b) of the MCA (revocation of an attorney's appointment is not an event upon which a replacement attorney may act). (OPG summary - LPA case.) 2010-04-072010 cases, Brief summary, LPA cases - all, LPA cases - severance of unreasonable, impractical or uncertain conditions, No transcript
Re Bullock (2009) COP 15/12/09 — The certificate providers did not tick the box to confirm that they had discussed the LPA with the donor and that the attorney was not present. The donor was in hospital and the certificate providers had discussed the LPA with the donor at his bedside, the attorney being present throughout. The Public Guardian refused registration on the ground that the instrument was not in prescribed form. The court, in the exercise of its discretion, declared under paragraph 3(2) of Schedule 1 of the MCA 2005 that the instrument, which was not in the prescribed form, should be treated as if it were. Registration was directed accordingly. [OPG summary.] 2010-01-122009 cases, Brief summary, LPA cases - all, LPA cases - where attorney present when certificate provider interviews the donor, No transcript
Re Helmsley (2009) COP 30/11/09 — The donor executed two instruments intended to be LPAs. In Part A of both instruments she omitted to tick the box to confirm that she gave her attorneys authority to act on her behalf in circumstances when she lacked capacity. The Public Guardian refused registration on the ground that the instruments were not in prescribed form. On the attorneys' application, the court exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA 2005 and declared that the instruments, although not in prescribed form, were to be treated as if they were. Registration was directed accordingly. [OPG summary.] 2010-01-122009 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument is in prescribed form, No transcript
Re Clarke (2009) COP 18/11/09 — The donor appointed three attorneys, A (his wife), B, and C, to be his attorneys. They were appointed to act jointly in some matters and jointly and severally in others. He then stated that the attorneys were to act together for transactions not exceeding £5,000 "but together in respect of all other decisions subject to my wife A's opinion prevailing in the event that my attorneys are not unanimous in any decision involving property or expenditure exceeding £5,000". On the application of the Public Guardian, the words "subject to my wife A's opinion" onwards were severed on the ground that they purported to facilitate one of the three attorneys being able to act independently in relation to matters that had been specified as subject to the joint decision of the attorneys. [OPG summary.] 2009-12-162009 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint appointment, Transcript
Re Kittle (2009) COP 1/12/09 — Regulation 8(3) of the LPA, EPA and PG Regulations 2007 sets out categories of persons who cannot act as certificate provider. Included in the list is "a family member" of the donor or of the attorney (or of the owner, director, manager or employee of any care home in which the donor is living when the instrument is executed). In this case the certificate provider was the donor's first cousin. The Public Guardian declined to register the instrument on the ground that a first cousin was a family member of the donor. The court ruled that a first cousin is not a family member, and so the LPA was valid. [OPG summary.] 2009-12-162009 cases, Brief summary, LPA cases - all, LPA cases - eligibility of certificate provider, Transcript
Re Gibbs (2008) COP 9/9/08 — The certificate provider ticked the box to confirm that he had discussed the LPA with the donor and that the attorneys were not present, and also ticked the box to say that the LPA had been discussed with the donor in the presence of other persons, identified as the attorneys. The court directed that the LPA was valid (the certificate provider having confirmed by letter that he had interviewed the donor on her own as well as with the attorneys present). (OPG summary.) 2009-11-292008 cases, Brief summary, LPA cases - all, LPA cases - where attorney present when certificate provider interviews the donor, No transcript
Re Baldwin (2009) COP 14/5/09 — The donor appointed X as original attorney, Y as the replacement for X, and Z as the replacement for Y if Y was unable or unwilling to act. On the application of the Public Guardian the court directed the severance of the appointment of Z on the ground that the MCA does not permit a donor to appoint a person to take over as a second replacement attorney if the first replacement attorney starts to act and then becomes unable to act. (OPG summary.) 2009-11-292009 cases, Brief summary, LPA cases - all, LPA cases - replacement for replacement attorney, No transcript
Re Howarth (2008) COP 28/7/08 — The donor had named the replacement attorney as the only person to be notified of an application to register. MCA Schedule 1 paragraph 2(3) provides that a person who is “appointed as donee under the instrument” may not be a named person. If there was no effective named person, the instrument could only be valid if it contained two Part B certificates, but it contained only one. On the application of the Public Guardian the court directed the severance of the appointment of the replacement attorney on the ground that a replacement attorney was a person “appointed as donee under the instrument” who could not, therefore, be a named person. As the appointment of the replacement attorney was severed, the named person was not an attorney and so the instrument could be registered. (OPG summary.) 2009-11-292008 cases, Brief summary, LPA cases - all, LPA cases - attorney or replacement attorney as a named person, No transcript
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 ..→2009-11-292009 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument has been correctly executed, No transcript
Re Ker (2009) COP 21/9/09 — The donor in Part A of the LPA form omitted to tick the box to confirm that he had chosen his certificate provider himself. The Public Guardian refused registration on the ground that the instrument was not in prescribed form. On the attorney's application, the court exercised its discretion under paragraph 3(2) of Schedule 1 to the MCA 2005 and declared that the instrument, although not in the prescribed form, was to be treated as if it were a lasting power of attorney. Registration was directed accordingly. (OPG summary.) 2009-11-292009 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument is in prescribed form, No transcript
Re Nazran (2008) 27/6/08 — The certificate provider had not completed the first two boxes in Part B of the instrument to confirm that he was acting independently of the donor, was not ineligible to provide a certificate, and was aged 18 or over. The attorneys applied to court for a declaration that the instrument was a valid LPA or, alternatively, that the instrument was to be treated as valid under MCA Schedule 1 paragraph 3(2). [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]. The court, in the exercise of its discretion under Schedule 1 paragraph 3(2), declared that the instrument was to be treated as if it were an LPA and registered accordingly. The Public Guardian does not have this discretion. (OPG summary.) 2009-11-292008 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument is in prescribed form, No transcript
Re Sykes (2009) 9/7/09 — The donor of a property and affairs LPA imposed a restriction stating that no gifts of any of her assets should be made other than "annual or monthly gifts already being made by me at the date of my signing this LPA by regular bank standing orders or direct debits". On the application of the Public Guardian the court severed this restriction on the ground that the gifts envisaged by the donor exceeded the attorney's authority to make gifts as set out in section 12 of the MCA 2005. (OPG summary.) 2009-11-292009 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript
Re Reading (2009) COP 25/6/09 — The donor appointed her husband and two of her children as original attorneys and a third child as replacement attorney. She added a restriction to the effect that, if her husband should predecease her, any decisions "must be agreed by all four of my children". The fourth child had not been appointed as attorney or replacement attorney. On the application of the Public Guardian the restriction was severed as being ineffective as part of an LPA, because it was not open to the donor to require that a person who was not an attorney should join in the making of decisions by the attorneys. (OPG summary.) 2009-11-292009 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions fettering authority of an attorney, No transcript
Re Bratt (2009) COP 14/4/09 — The donor appointed two attorneys, A and B, to act jointly and severally, and directed that "B is only to act as attorney in the event of A being physically or mentally incapable of acting in this capacity". On the application of the Public Guardian this provision was severed as being inconsistent with a joint and several appointment. The Senior Judge added that, to have achieved the desired objective, the donor should instead have appointed B to be a replacement attorney. (OPG summary.) 2009-11-292009 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re P (2009) COP 9/6/09 — The donor appointed three attorneys to act jointly and severally, and imposed the following restriction: "I require that two attorneys must act at any one time so that no attorney may act alone." On the application of the Public Guardian the court severed the restriction on the ground that it was ineffective as part of an LPA. (OPG summary.) 2009-11-292009 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Azancot (2009) COP 27/5/09 — The donor of a personal welfare LPA inserted a restriction that her replacement attorneys "may only act under this power in the event that the donor is physically or mentally incapacitated and there is written medical evidence to that effect". The words "physically or" were severed on the application of the Public Guardian, as the effect of section 11(7) of the MCA is that a personal welfare attorney may not make a decision unless the donor lacks mental capacity to make it. (OPG summary.) 2009-11-292009 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions incompatible with a Health and Welfare LPA, No transcript
Re Bates (2008) COP 3/12/09 — The donor appointed two original attorneys and a replacement attorney, who would assume office in the following circumstances: “She may act at any time at the election of either attorney”. These words were severed on the application of the Public Guardian on the ground that a replacement attorney may only act on the occurrence of an event mentioned in section 13(6)(a) to (d) of the MCA, for example where an original attorney disclaims, dies or loses mental capacity. (OPG summary.) 2009-11-292008 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript
Re Patel (2008) COP 1/12/08 — The donor appointed a replacement attorney to act if the original attorney should be “mentally or physically incapable” or if the original attorney “is not in England at any time that my personal or financial affairs require attention”. The words in bold were severed on the application of the Public Guardian on the ground that a replacement attorney may only act on the occurrence of an event mentioned in section 13(6)(a) to (d) of the MCA, for example where an original attorney disclaims, dies or loses mental capacity. (OPG summary.) 2009-11-292008 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, No transcript
Re Jenkins (2008) COP 2/9/08 — The donor had appointed the attorneys of a property and affairs LPA to act “together and independently”. She then directed that they must act together in relation to any bills, payments or costs exceeding £2,000 in any one calendar month and in relation to any single payment greater than £1,000 in any calendar month. The donor had also appointed a replacement attorney, and directed that she should act if the original attorneys were “not available through travel or living abroad or any other circumstances that may prevent or restrict their capacity to act on my behalf as attorneys”. The court ordered the severance of both clauses, on the application of the Public Guardian. The directions in the first clause were incompatible with an appointment to act “together and independently”. The directions in the second clause were invalid because a replacement attorney may only act on the occurrence of an event mentioned in section 13(6)(a) to (d) of the MCA, for example where an ..→2009-11-292008 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions as to when a replacement attorney may act, LPA cases - severance of restrictions incompatible with a joint and several appointment, No transcript
Re Begum (2008) COP 24/4/08 — On the application of the Public Guardian, the court directed the severance from a Property and Affairs LPA instrument of the following clauses, on the ground that they were ineffective as part of an LPA: (1) All decisions about the use or disposal of my property and financial resources must be driven by what my Personal Welfare Lasting Power of Attorney(s) believe will support my long term interests. (2) Any decisions affecting assets (individually or together) worth more than £5,000 at any one time must be discussed and agreed with Dr X. (3) In the event of there being any disagreement between my Personal Welfare Lasting Power of Attorney(s) and/or Dr X this should be resolved by these parties appointing an independent advocate to adjudicate. (OPG summary.) 2009-11-292008 cases, Brief summary, LPA cases - all, LPA cases - severance of restrictions fettering authority of an attorney, No transcript
Re Murdoch (2009) COP 30/10/09 — The donor executed an instrument intended to be a personal welfare LPA. It contained the following defects: (i) the certificate provider had failed to tick the first two mandatory boxes in Part B, (ii) the attorney had failed to tick any of the boxes in Part C, although he had dated and executed it, and (iii) the replacement attorney had ticked the appropriate boxes in his Part C but had not dated or executed it. The Public Guardian refused to register the instrument, and the donor subsequently lost capacity. On the attorney's application, the court directed the Public Guardian not to register the instrument, because "the errors in its execution are too fundamental". 2009-11-092009 cases, Brief summary, LPA cases - all, LPA cases - whether the instrument is in prescribed form, No transcript

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