Re J (Enduring Power of Attorney) [2009] EWHC 436 (Ch)
An Enduring Power of Attorney appointing successive or alternative attorneys is valid, if it is stated for each set of attorneys whether, in the event that they exercise the power, the attorneys must exercise it jointly or jointly and severally.
Summary
The EPA in question stated:
- "I … appoint my wife [W] to be my Attorney for the purposes [of the] Enduring Powers of Attorney Act 1985 but if she shall have predeceased me or shall be unable to act or to continue to act as my Attorney whether registered or unregistered then in the alternative I appoint my son [A] and my son [B] and my son [C] jointly and severally to be my attorney(s) for the purpose of the Enduring Powers of Attorney Act 1985 with general authority to act on my behalf in relation to all my property and affairs."
No new EPAs can be created, but existing ones can still be registered and are governed by Schedule 4 Mental Capacity Act 2005, which substantially re-enacts the Enduring Powers of Attorney Act 1985.
Paragraph 20 of Schedule 4 MCA 2005 states:
- An instrument which appoints more than one person to be an attorney cannot create an enduring power unless the attorneys are appointed to act—
- (a) jointly, or
- (b) jointly and severally."
The Office of the Public Guardian argued that a purported EPA appointing successive or alternative attorneys is invalid because the requirements of paragraph 20 are not satisfied (i.e. not all of the attorneys are appointed to act either jointly or jointly and severally). This argument was rejected.
Other
Judgment date: 12 March 2009
Hearing date: 5th March 2009
Before: Lewison J
Ms Nicole Sandells (instructed by Moody and Woolley) for the Applicant
Mr David Rees (instructed by The Public Guardian) for the Respondent