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LPA cases - severance of restrictions


The old category structure shown on this page is comprehensive as it contains every case. The new database structure was introduced in 2019. It is more potentially useful than the old categorisation system: it includes all cases from 2019, 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 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.] 2014‑04‑29 20:59:05 2012 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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.] 2014‑04‑29 20:56:34 2013 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, 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.] 2014‑04‑29 20:47:13 2013 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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.] 2013‑09‑07 22:37:45 2013 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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 becoming" were also inconsistent with section 11(7)(a) because the donor must lack capacity (or be reasonably believed to lack capacity). It is not sufficient that the donor may be "becoming" mentally incapable. The wording of section 11(7)(a) may be contrasted with paragraph 4(1) of Schedule 4 of the MCA, which imposes a duty to apply for registration on an attorney under an EPA when the donor "is or is becoming" mentally incapable. [OPG summary - LPA case.] 2013‑08‑12 22:04:28 2013 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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.] 2013‑08‑12 22:00:59 2013 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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.] 2013‑03‑26 23:46:15 2013 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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.] 2013‑03‑26 23:43:24 2013 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No 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.] 2012‑12‑18 20:38:28 2012 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, 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. [OPG summary - LPA case.] 2012‑09‑30 19:19:53 2012 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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.] 2012‑09‑30 19:16:15 2012 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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.] 2012‑09‑30 19:13:16 2012 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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.] 2012‑09‑30 19:11:44 2012 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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.] 2012‑09‑30 19:09:43 2012 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, 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.] 2012‑06‑23 13:22:37 2012 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, 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.] 2012‑04‑28 20:50:38 2012 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Tucker (2011) COP 9/12/11The 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.] 2012‑01‑09 21:29:39 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Evans (2011) COP 24/11/11The 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.] 2012‑01‑09 21:27:12 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Hamilton (2011) COP 25/10/11The 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.] 2011‑11‑30 21:09:48 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Stewart (2011) COP 9/11/11The 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.] 2011‑11‑30 21:08:37 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re McGregor (2011) COP 16/11/11The 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.] 2011‑11‑30 21:07:16 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Steiner (2011) COP 17/10/11The 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.] 2011‑11‑14 19:36:10 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Wormsley (2011) COP 24/10/11The 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.] 2011‑11‑14 19:32:56 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Ingham (2011) COP 15/8/11The 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.] 2011‑09‑30 23:00:10 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Freeman (2011) COP 17/8/11The 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.] 2011‑09‑30 22:58:29 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Pugh (2011) COP 13/7/11The 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.] 2011‑09‑30 22:56:31 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Wheeler (2011) COP 25/7/11The 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.] 2011‑09‑30 22:53:52 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Hodgkiss (2011) COP 25/8/11The 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.] 2011‑09‑30 22:50:58 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Gardner (2011) COP 6/7/11The 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 commission of a criminal offence. [OPG summary - LPA case.] 2011‑09‑30 22:48:38 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Parsonage (2011) COP 1/4/11The 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.] 2011‑05‑26 21:04:37 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Parker (2011) COP 18/2/11The 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.] 2011‑03‑18 19:11:08 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Noel (2011) COP 31/1/11The 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.] 2011‑03‑18 19:09:38 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Scragg (2011) COP 1/2/11The 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.] 2011‑03‑18 19:06:34 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Cranston (2011) COP 18/2/11The 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.] 2011‑03‑18 18:44:59 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Scott (2011) COP 11/1/11The 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 welfare should prevail. [OPG summary - LPA case.] 2011‑01‑30 19:53:47 2011 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Warren (2010) COP 10/12/10The 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 attorneys. [OPG summary - LPA case.] 2011‑01‑07 20:03:40 2010 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Weyell (2010) COP 2/12/10The 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 wishes only. The court accepted this submission and did not sever the second restriction. [OPG summary - LPA case.] 2011‑01‑07 20:02:00 2010 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Moore (2010) COP 26/10/10The 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.] 2010‑11‑28 20:53:52 2010 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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 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 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 these restrictions on the ground that, where the original attorneys had been appointed to act jointly and severally, the donor could not change the nature of the appointment by directing that the surviving original attorney should act in a different manner when the other original attorney had been replaced. [OPG summary - LPA case.] 2010‑11‑28 20:52:21 2010 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Ferguson (2010) COP 26/10/10The 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.] 2010‑11‑28 20:48:19 2010 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Thrussell (2010) COP 12/10/10The 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.] 2010‑10‑27 23:13:56 2010 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Warner (2010) COP 31/8/10The 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.] 2010‑10‑27 23:11:49 2010 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Lan (2010) COP 10/8/10The 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.] 2010‑09‑02 19:22:28 2010 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Cotterell (2010) COP 3/8/10The 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.] 2010‑08‑16 22:17:31 2010 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Davies (2010) COP 5/7/10The 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.] 2010‑07‑09 20:52:58 2010 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re P Crook (2010) COP 2/7/10The 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.] 2010‑07‑09 20:51:34 2010 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re D'Argenio (2010) COP 9/6/10The 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.] 2010‑07‑09 20:50:07 2010 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Saunders (2010) COP 30/3/10The 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.) 2010‑04‑07 21:52:14 2010 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Clarke (2009) COP 18/11/09The 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.] 2009‑12‑16 02:00:35 2009 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, 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, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Reading (2009) COP 25/6/09The 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.) 2009‑11‑29 21:48:05 2009 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Bratt (2009) COP 14/4/09The 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.) 2009‑11‑29 21:46:29 2009 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re P (2009) COP 9/6/09The 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.) 2009‑11‑29 21:45:15 2009 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Azancot (2009) COP 27/5/09The 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.) 2009‑11‑29 21:43:14 2009 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Bates (2008) COP 3/12/09The 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.) 2009‑11‑29 21:41:29 2008 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Patel (2008) COP 1/12/08The 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.) 2009‑11‑29 21:40:14 2008 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Jenkins (2008) COP 2/9/08The 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 original attorney disclaims, dies or loses mental capacity. (OPG summary.) 2009‑11‑29 21:37:36 2008 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


Re Begum (2008) COP 24/4/08On 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.) 2009‑11‑29 21:33:02 2008 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript


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