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'.

Note

The summaries below are from the OPG section of the Justice website.

Title: Re Putt (an order of the Senior Judge made on 22 March 2011)

(1) Eligibility of Certificate Provider

The donor appointed two partners of a firm of solicitors which was a Limited Liability Partnership (LLP) as attorneys in her property and affairs instrument and her health and welfare instrument. The certificate provider was an associate solicitor of the same LLP. Regulation 8(3)(f) of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 disqualifies a person from acting as certificate provider if that person is "a business partner or employee" of the donor or of an attorney under the instrument. While this regulation clearly applies to a common law partnership, it does not expressly deal with LLPs. The Public Guardian made a severance application in relation to another matter (see below under the heading "Appointment of substitute by an attorney") and asked the court also to consider whether the instrument was invalid on the ground that Regulation 8(3)(f) applied to LLPs as well as to common law partnerships. The court ruled that the instrument was not a valid LPA because the certificate provider was ineligible to act. (By a separate order made on 12 April 2011 the court directed that the health and welfare instrument should not be registered and that registration of the property and affairs instrument, which had been registered before the defect was noticed, should be cancelled.)

(2) Appointment of substitute by an attorney

The donor appointed a family member and two solicitors in her property and affairs and health and welfare instruments. In both instruments she directed as follows: "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." The Public Guardian applied for severance of the direction on the ground that it was too wide and in effect enabled the attorneys to appoint a substitute. The court ruled that the clause was invalid as being "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." (The LPAs were in any event invalid: see above under the heading "Ineligibility of certificate provider".)

External link

Not on Bailii

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 This is a link to an archived version of the web page (archived on 6/10/14).

Transcript