Re J (Enduring Power of Attorney)
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR. JUSTICE LEWISON |
| Judgment Date | 12 March 2009 |
| Neutral Citation | [2009] EWHC 436 (Ch) |
| Docket Number | Case No: 11637237 |
| Court | Chancery Division |
| Date | 12 March 2009 |
[2009] EWHC 436 (Ch)
IN THE COURT OF PROTECTION
Before: The Honourable Mr. Justice Lewison
Case No: 11637237
Ms Nicole Sandells (instructed by Moody and Woolley) for the Applicant
Mr David Rees (instructed by The Public Guardian) for the Respondent
Hearing date: 5 th March 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Lewison:
On 9 February 2007 Mr J executed a document, the relevant parts of which read:
“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.”
This form was based on Form 147 in volume 31 of the Encyclopaedia of Forms and Precedents. The short but difficult question is: is it a valid enduring power of attorney?
The Public Guardian, represented before me by Mr David Rees, has taken the view that it is invalid because it purports to appoint attorneys in the alternative. Even if that is not prohibited, a valid enduring power of attorney cannot appoint successive attorneys where (as here) the power contemplates that one of the attorneys might begin to act before subsequently ceasing to act. Mr J's wife, W, represented before me by Ms Sandells, says that there is nothing wrong with the enduring power, and that now that Mr J has ceased to have mental capacity the power should be registered. She considers herself unable to act, and wishes the power to be registered so that her sons can act as Mr J's attorneys.
At common law a power of attorney is an agency created by deed. The agency thus created was terminated by the subsequent loss of mental capacity of the donor of the power. This consequence of loss of mental capacity was widely perceived as a defect in the law; and the Law Commission proposed changing it. Following the publication of both a working paper and a report (The Incapacitated Principal Law Com No 122) the Enduring Powers of Attorney Bill was introduced into Parliament and was enacted as the Enduring Powers of Attorney Act 1985.
Since 1 October 2007, when the Mental Capacity Act 2005 came into force, it has no longer been possible to create an enduring power of attorney. Now the way of creating a power of attorney which survives the mental incapacity of the donor of the power is by the creation of a lasting power of attorney. However, enduring powers of attorney created before that date continue to have effect. The law applicable to such powers is now contained in Schedule 4 to the Mental Capacity Act 2005, which substantially re-enacts the Enduring Powers of Attorney Act 198The relevant parts of that Schedule are set out in Appendix 1 to this judgment. One of the main changes, however, is a change in procedure. Before 1 October 2007 the Court of Protection dealt with both the legal and administrative aspects of enduring powers of attorney. Since then the Court of Protection continues to deal with the legal aspects; but the Public Guardian deals with administrative aspects, and in particular the registration of powers.
The essential features of an enduring power of attorney are these.
i) An enduring power of attorney is a sub-species of powers of attorney generally (Schedule 4 para. 1). Thus it must comply with the formalities necessary to create a power of attorney. It follows from this that, unless qualified by a restriction in the instrument itself, an enduring power of attorney will take effect immediately.
ii) An enduring power of attorney must comply with additional formalities. These include a requirement that the instrument must be in a prescribed form; and that it must be executed not only by the donor of the power but also by the attorney (Schedule 4 para. 2).
iii) If an instrument appoints more than one person to be an attorney it must state whether they are appointed to act jointly, or jointly and severally (Schedule 4 para. 20).
iv) An enduring power of attorney may contain conditions or restrictions which limit the authority conferred on the attorney by the power (Schedule 4 para. 3).
v) There is no limit to the number of enduring powers that a donor can create; and they may exist concurrently or successively: Re E (Enduring Powers of Attorney) [2001] Ch 364, 373E.
vi) If the formalities are complied with, an enduring power of attorney will not be revoked by any subsequent mental incapacity of the donor (Schedule 4 para.1).
vii) As soon as an attorney under an enduring power of attorney has reason to believe that the donor is or is becoming mentally incapable, he must apply to the Public Guardian to register the power (Schedule 4 para. 4)
viii) Registration is not discretionary. The Public Guardian must register the power unless one or more of five specified grounds of objection are made out. If any of the specified grounds are made out, then he must not register the power (Schedule 4 para.13). The five specified grounds are contained in Schedule 4 paragraph 13 (9).
ix) Once the power has been registered it cannot be revoked without an order of the court; and the donor cannot extend or restrict the scope of the power or give instructions to the attorney (Schedule 4 para.15).
Some of these essential features of the scheme call for further comment at this stage. First, the instrument creating the power must be made in the prescribed form. Various forms have been prescribed over the years. The operative parts of the form prescribed by the Enduring Powers of Attorney (Prescribed Form) Regulations 1990 are reproduced as Appendix 2 to this judgment. Regulation 2 (1) of those Regulations states:
“Subject to paragraphs (2) and (3) of this regulation and to regulation 4, an enduring power of attorney must be in the form set out in the Schedule to these Regulations and must include all the explanatory information headed “About using this form” in Part A of the Schedule and all the relevant marginal notes to Parts B and C. It may also include such additions (including paragraph numbers) or restrictions as the donor may decide.”
Thus, subject to the specified provisions, regulation 2 (1) positively allows the donor to make additions to the prescribed form. Regulation 2 (2) deals with certain other aspects of the form of the instrument. In particular there must be excluded one (and only one) of any pair of alternatives. One pair of alternatives is “jointly” and “jointly and severally” in Part A of the form. Thus one of these alternatives must be omitted or deleted. Regulation 2 (3) is not relevant for present purposes. Regulation 4 provides:
“Where more than one attorney is appointed and they are to act jointly and severally, then at least one of the attorneys so appointed must execute the instrument for it to take effect as an enduring power of attorney, and only those attorneys who have executed the instrument shall have the functions of an attorney under an enduring power of attorney in the event of the donor's mental incapacity or of the registration of the power, whichever first occurs.”
Second, the power may contain conditions or restrictions. There is no limitation on the nature of the conditions or restrictions, except that they must not conflict with anything that the Act positively forbids. A condition may, for instance, be a condition precedent to the coming into operation of the power (e.g. “This power shall not be exercisable unless two medical practitioners have certified that I lack mental capacity” or “This power shall not be exercisable unless I have lacked mental capacity for more than three months”). It may be a restriction on the kind of asset with which the attorney may deal (e.g. “This power does not extend to any sale charge or other disposition of land in which I have an interest”); or may place limitations on the manner in which the attorney may deal with a particular asset (e.g. “My attorney may not sell or charge any dwelling in which I reside without the written consent of my spouse”).
Third, since there is no limit to the number of enduring powers of attorney that a donor may create a donor may create one enduring power of attorney governing his bank account and another governing his home; or one enduring power of attorney dealing with his property in England, and another dealing with his property in Wales. Given the ability to place temporal conditions or limitations on the operation of an enduring power of attorney it is also possible to create powers which will have alternative operation. Thus a donor may create one power in favour of his wife and another in favour of his children, the latter being subject to a condition that it is not to come into operation unless his wife disclaims under the first power. The same technique may be used to create enduring powers of attorney that have successive operation. Thus a donor may create one power in favour of his wife and another in favour of his children, subject to a restriction that it is not to come into operation during his wife's lifetime.
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