Category

LPA cases - severance of invalid restrictions relating to gifts

Case and summary Date added Categories
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.] 2014‑04‑29 20:56:34 2013 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.] 2014‑04‑29 20:53:33 2013 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.] 2014‑04‑29 20:49:55 2013 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, 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.] 2012‑09‑30 19:24:19 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No 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.] 2012‑06‑23 13:33:10 2012 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 male and female spouses and, in principle, such clauses should be treated as valid on the basis of the specific maintenance obligations imposed by statutes such as National Assistance Act 1948, section 24(1)(b) and Social Security Administration Act 1992, section 105(3), and the absence of any distinction between husband and wife in other legislation, such as the Matrimonial Causes Act 1973 and the Inheritance (Provision for Family and Dependants) Act 1975." [OPG summary - LPA case.] 2012‑06‑23 13:31:09 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No 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.] 2012‑04‑28 20:55:01 2012 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.] 2012‑04‑28 20:52:51 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, 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.] 2012‑03‑19 22:31:08 2012 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Dhir (2011) COP 15/11/11The 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.] 2011‑11‑30 21:40:07 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Gee (2011) COP 22/8/11The 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 for the needs of others in circumstances outside the statutory gifting power. However, the court severed the guidance on the ground that it contravened section 12 of the MCA 2005. [OPG summary - LPA case.] 2011‑09‑30 23:16:48 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Temple (2011) COP 10/8/11The 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.] 2011‑09‑30 23:14:51 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Jackson (2011) COP 17/8/11The 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.] 2011‑09‑30 23:12:47 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Fisher (2011) COP 28/7/11The 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.] 2011‑09‑30 23:11:16 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Walker (2011) COP 20/7/11The 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.] 2011‑09‑30 23:09:43 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Knight (2011) COP 18/2/11The 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 gifts on "customary occasions", the donor did not appear to have been contemplating customary occasions at all. [OPG summary - LPA case.] 2011‑03‑18 19:04:51 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Careford (2011) COP 16/2/11The 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.] 2011‑03‑18 19:03:09 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Wheatley (2011) COP 31/1/11The 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.] 2011‑03‑18 19:01:57 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Munn (2011) COP 28/1/11The 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.] 2011‑03‑18 19:00:10 2011 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Baker (2010) COP 12/11/10The 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.] 2010‑11‑28 20:57:17 2010 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Jass (2010) COP 26/10/10The 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.] 2010‑11‑28 20:55:39 2010 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript


Re Sykes (2009) 9/7/09The 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.) 2009‑11‑29 21:48:55 2009 cases, Brief summary, LPA cases - all, LPA cases - severance of invalid restrictions relating to gifts, No transcript