Justice Nugee of the High Court has found that a donor of a lasting power of attorney can appoint two attorneys to act jointly with the proviso that if one of them were unable or unwilling to act then the survivor should continue to act alone.
This finding reverses an earlier decision of Senior Judge Lush in the Court of Protection, where a clause to this effect was held to be invalid.
Lasting Powers of Attorney (“LPA”) were introduced in the Mental Capacity Act 2005 to replace Enduring Powers of Attorney. These were created to deal with the fact that a general power of attorney ceases to be effective once the donor (the person making the power of attorney) ceases to have capacity.
When attorneys are appointed jointly and one of them becomes unable to act, the appointment of both attorneys is revoked and, unless there is a replacement attorney appointed, the whole power of attorney will come to an end.
It is possible to appoint your attorneys to act jointly and severally in respect of some decisions, and jointly in respect of others. In this case, if one attorney was unable to act, the ‘surviving attorney’ so to speak would only be able to assist the donor in relation to the decisions for which they have been appointed jointly and severally.
Mrs Miles’s LPA stated that her attorneys could act jointly and severally in all decisions, other than those relating to transactions over £10,000 or in relation to the sale of her house. For those decisions, she specified, they must act jointly.
Her LPA also attempted to address the potential problem above by stating that if one of the jointly appointed attorneys should be unable to act then the surviving attorney should act on their own, rather than the power being given absolutely to the replacement attorney.
Justice Nugee found that there was nothing in the Mental Capacity Act 2005 (“the Act”) which would preclude an LPA including this provision and that in any event the Act should be interpreted in a way that allowed the donor the most flexibility.
It should, therefore, be permissible to appoint attorneys to act jointly, but to include a proviso that should one become unable to act, then the surviving attorney carries on regardless, rather than their appointment falling away altogether.
Justice Nugee allowed Mrs Miles’s appeal and found that her LPA should be read to include this provision for survivorship.
If you are interested in making a Lasting Power of Attorney, or concerned an existing power of attorney, please do not hesitate to get in touch with Anna Casey-Woodward on 01865 255632, or email her at firstname.lastname@example.org