Re R (Enduring Power of Attorney)
| Jurisdiction | England & Wales |
| Year | 1990 |
| Date | 1990 |
| Court | Chancery Division |
Power of Attorney - Enduring power of attorney - Court of Protection - Application by donor's housekeeper for provision out of donor's estate - Donor incapable of mcnaging her affairs - Court's jurisdiction to supervise donee's conduct - Whether giving court jurisdiction to grant provision -
The applicant, who had been employed by R. for over 20 years, originally as a resident cook-housekeeper, but more recently as a companion, alleged that she had provided her services to R. at a very low rate because of their close relationship and because of an expectation, encouraged by R., that she would provide for her for the rest of her life. When R. was in her 80s she gave to her nephew an enduring power of attorney with a general authority to act on her behalf (save for two restrictions) which was registered under the Enduring Powers of Attorney Act 1985.F1 Soon afterwards R. was found by a visitor of the Court of Protection to be incapable of managing her affairs and was transferred to a nursing home. R.'s attorney then gave the applicant notice terminating her employment and sought possession of the flat. The applicant applied to the Master of the Court of Protection, under the Act of 1985, seeking provision out of R.'s estate. The master dismissed the application.
On the applicant's appeal: —
Held, dismissing the appeal, that the court's powers under the Enduring Powers of Attorney Act 1985 were primarily directed to the proper supervision of the attorney and to giving necessary supplementary consents and authorisations which were not inconsistent with the restrictions imposed by the donor of the power; that while section 8 gave the court jurisdiction to supervise the conduct of an attorney in the exercise of his power, subsection (2)(b)(i), on its true construction, did not give power to direct the disposal of property of the donor by way of gift or in recognition of a moral obligation unaccompanied by any legal obligation; and that, accordingly, the court had no power to direct that provision be made for the applicant (post, pp. 1222H–1223B, F–G).
No cases are referred to in the judgment or were cited in argument.
APPEAL from the Master of the Court of Protection.
On 31 January 1989 the applicant applied under the Enduring Powers of Attorney Act 1985 to the Master of the Court of Protection for an order that such provision be made as the court deemed proper for her maintenance and accommodation out of the estate of Mrs. R. The respondent to the application was Mrs. R.'s nephew who had been given an enduring power of attorney shortly before Mrs. R. became incapable of managing her own affairs. The master dismissed the application and the applicant appealed from that dismissal.
The facts are stated in the judgment.
The appeal was heard in chambers. The judgment is reported with the permission of the judge.
Timothy Lyons for the applicant.
Richard de Lacy for the attorney.
VINELOTT J. This is an appeal from the Master of the Court of Protection. It raises a short question concerning the construction and effect of the Enduring Powers of Attorney Act 1985.
I need say very little, and it is undesirable that I should say more than a very little, about the contentious matters which form the background for this appeal. The donor of the power of attorney, Mrs. R., is now in her 80s. Not long after she had given the power of...
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...at §33 [7] [2015] COPLR 676, at §19 [8] (8th ed, 2017) [9] at §1.6; see also the dicta of Vinelott J in Re R (Enduring Power of Attorney) [1990] Ch 647 at 650A-C, 651H-652B [10] see: 1996 Legislative Council Brief at §§6-8 [11] EPOAO s 8(1)(a) [12] MHO s 11(2) [13] EPOAO s 8(1)(b); EPOAO (P......