Category

EPA cases - formalities


The old category structure used on this page is comprehensive as it contains every relevant case. The new database structure was introduced in 2019. It is more potentially useful than the old categorisation system: it includes all cases since January 2018, but only a minority of older cases: see Special:Drilldown/Cases. The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.

Case and summary Date added Categories
Re Newman [2012] MHLO 73 (EPA)The donor made an EPA in which, amongst other defects, he failed to select either of the following alternatives: "with general authority to act on my behalf" or "with authority to do the following on my behalf". The court confirmed that this failure did not invalidate the EPA, because it was an immaterial difference from the prescribed form within paragraph 2(4) of Schedule 4 of the MCA. [OPG summary - EPA case.] 2012‑08‑16 22:02:19 2012 cases, Brief summary, EPA cases - formalities, Judgment available on MHLO, Neutral citation unknown or not applicable, Transcript


Re Freeman (2010) COP 7/9/10The donor signed Part B of the EPA instrument on 14 April 2006, but the attorney did not sign Part C until 3 October 2008. The Public Guardian refused to register on the ground that an instrument could not be a valid EPA unless the attorney had signed before 1 October 2007. Section 66(2) of the Mental Capacity Act 2005 provides that an EPA cannot be "created" after commencement. On the attorney's application the court declared that the instrument was not a valid EPA. (The attorney applied for a reconsideration but the Judge confirmed his earlier decision by an order made at a hearing on 28 February 2011.) (Note: The Public Guardian will register an EPA appointing joint and several attorneys if at least one attorney signed before 1 October 2007 even though other(s) did not, in which case registration will be limited to the attorney(s) who signed before that date.) [OPG summary - EPA case.] 2010‑12‑01 21:52:30 2010 cases, Brief summary, EPA cases - formalities, Judgment does not exist, No transcript


Re Orriss (2010) COP 20/10/10By mistake the donor's surname was omitted from the instrument, which included only his first and second names. The EPA was registered without the mistake being discovered. On the application of the attorney the court directed the Public Guardian to attach a note to the EPA stating that the donor's surname had been omitted in error from Part B. [OPG summary - EPA case.] 2010‑11‑28 20:45:34 2010 cases, Brief summary, EPA cases - formalities, Judgment does not exist, No transcript


Re Devine (2010) COP 13/10/10The attorney's signature in Part C was witnessed but the witness did not sign his name. On the application of the attorney the court declared that the instrument was defective in a material respect and did not take effect as an EPA. [OPG summary - EPA case.] 2010‑10‑25 21:49:42 2010 cases, Brief summary, EPA cases - formalities, Judgment does not exist, No transcript


Re Lodge (2010) COP 6/8/10Unfortunately by mistake the donor signed Part C and the attorney signed Part B of the EPA instrument. On the attorney's application the Court held that the donor's failure to execute the instrument correctly was a material defect and it was not a valid EPA. The attorney applied for a reconsideration of this order. By an order of the Senior Judge made on 14/3/11 the previous order was affirmed. [OPG summary - EPA case - transcript available.] 2010‑08‑16 22:12:57 2010 cases, Brief summary, EPA cases - formalities, Judgment available on MHLO, Neutral citation unknown or not applicable, Transcript


Re Smith (2009) COP 7/12/09In Part C of the EPA the attorney had deleted the words "I also understand my limited power to use the donor's property to benefit persons other than the donor". On the attorney's application, the court was satisfied that the deletion was made in error, and directed that the instrument should be read as if the wording had not been deleted. [OPG summary - EPA case.] 2010‑01‑12 19:02:19 2009 cases, Brief summary, EPA cases - formalities, Judgment does not exist, No transcript


Re Portues (2009) COP 6/1/09In Part B of the instrument the donor appointed attorneys to act jointly and severally and struck out the words “with general authority to act”, leaving in place the words “with authority to do the following”. She did not include any instructions under those words to indicate the scope of the attorneys’ powers. On the application of the attorney for rectification of the instrument, the court was satisfied that it was the donor’s intention to confer general authority on the attorneys and that the deletion of those words was a clerical error. The court declared that the EPA was to be read and construed as if the donor granted general authority to the attorneys and directed the Public Guardian to reconsider the registration of the EPA in the light of the declaration. [OPG summary - EPA case.] 2009‑11‑29 23:57:56 2009 cases, Brief summary, EPA cases - formalities, Judgment does not exist, No transcript


Re Sawyer (2009) COP 31/3/09In Part B of the EPA the donor appointed four attorneys, but omitted to strike out either option "jointly" or "jointly and severally" in relation to how they should act. On the application of the attorneys, the court was satisfied that the donor had intended to appoint them to act jointly and severally, and directed that the EPA should be construed as if they had been appointed jointly and severally and the alternative option "jointly" had been deleted. The Public Guardian was directed to attach a note to that effect to the registered EPA. [OPG summary - EPA case.] 2009‑11‑29 22:51:33 2009 cases, Brief summary, EPA cases - formalities, Judgment does not exist, No transcript


Re Vallet (2009) COP 27/1/09The original EPA could not be produced, nor was there a certified copy in existence. Regulation 24(2) of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 provides that, in such a case, the Public Guardian must not register without an order of the court. On the application of the attorney the court declared that it was satisfied that the copy was a copy of the original EPA, which had been lost but not revoked, and directed registration. [OPG summary - EPA case.] 2009‑11‑29 22:11:04 2009 cases, Brief summary, EPA cases - formalities, Judgment does not exist, No transcript


Re Parker (2008) COP 22/12/08This application concerned an EPA which had already been registered in 2007. The attorneys had signed the EPA on 25 December 1993 and the donor had signed later, on 13 January 1994. The court held that the EPA was valid, applying the unreported decision of Knox J in Re R dated 23 February 1988. (OPG summary.) 2009‑11‑29 22:07:18 2008 cases, Brief summary, EPA cases - formalities, Judgment does not exist, No transcript


Re Wealleans (2008) COP 8/5/08The witness had not stated her address in the instrument, as required by Regulation 3(1) of the Enduring Powers of Attorney (Prescribed Form) Regulations 1990. On the application of the attorney the court declared pursuant to MCA Schedule 4 paragraph 2(4) that the EPA was “procedurally valid”. [Paragraph 2(4) provides that, if an instrument differs in an immaterial respect in form or mode of expression from the prescribed form it is to be treated as sufficient in point of form and expression]. [OPG summary - EPA case.] 2009‑11‑29 22:05:40 2008 cases, Brief summary, EPA cases - formalities, Judgment does not exist, No transcript


Re Harries (2009) COP 22/6/09 11613871The witnesses to an EPA had handwritten their names but not separately signed the form, so the OPG had refused to register the EPA. The court held that the difference between a handwritten name (as opposed to a typed one) and a signature is immaterial, and ordered that the EPA be registered. 2009‑09‑27 15:48:53 2009 cases, Brief summary, EPA cases - formalities, Judgment available on MHLO, Neutral citation unknown or not applicable, Transcript