Re J (enduring power of attorney) [2009] EWHC 436
J, the donor, executed an Enduring Power of Attorney on the 9 February 2007. One of the clauses read:
“I ….. appoint my wife [W] to be by Attorney for the purposes of the Enduring Powers of Attorney Act 1985 EPA 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 EPA with general authority to act on my behalf in relation to all my property and affair.”
J ceased to have mental capacity and his wife applied to the High Court to register the EPA. The Public Guardian opposed the registration on the ground that the wording in the above clause did not comply with the rules. According to the Public Guardian, an EPA must state whether all those named are to act jointly or whether they are to act jointly and severally. There cannot be any mix and match as in this case.
The judge held that rules should not detract from the proper interpretation of the Act and there is nothing preventing the donor of an EPA from specifying two sets of attorneys, provided that it is made clear in relation to each set whether they are to act jointly on the one hand or jointly and severally on the other. The judge therefore concluded that the power of attorney is a valid enduring power of attorney and must be registered without qualification.
Re P [2009] EWHC 163
P was domiciled in California. Upon lacking capacity, the Californian court appointed the Bank of America as P’s ‘conservator’ (effectively equivalent to a welfare and property and affairs deputyship in England). P possessed property in England and Wales and the Conservator applied to the Court of Protection for the making of a will on behalf of P and to appoint a Deputy and to determine what powers the Deputy will have.
Section 16 of the Mental Capacity Act 2005 gives the court the power to appoint a deputy or to make decisions on behalf of a person who lacks capacity. The powers under section 16 also include the execution of a will for P. The execution of a will is a decision which must be made by the court only and therefore cannot be entrusted to a deputy.
According to section 1 (5), an act done or decision made under this act for or on behalf of a person must be done or made in his best interests. The overarching principle is therefore that any decision must be made in P’s best interests although this is not necessarily the same as enquiring what P would have decided if he had capacity. In deciding what is best for P, the decision maker must consider where it is likely that the person will at some time have capacity; permit and encourage the person to participate or to improve his ability to participate; the person’s beliefs and values that will be likely to influence his decision if he had capacity; and the person’s past and present wishes and feelings and other factors that he would be likely to consider if he were able to do so. In this case, the judge also ruled that the decision maker is entitled to take into account how P will be remembered after his death.
The judge therefore directed a statutory will to be executed on behalf of P and a deputy to be appointed.
Re B (a patient) (Court of Protection: appeal) [2006] All ER 978
The Applicant lived with his mother who lacked capacity. In 1981, the mother (P) had made a will nominating the Applicant as a sole executor and made provisions that her estate be divided equally between her three children.
P’s three children started disputing amongst themselves. Due to concerns regarding P’s financial affairs, Mr Spiers of Withy King Solicitors, was appointed as ‘Receiver’ (now known as a Deputy). As a result of discord amongst the children, the Receiver applied to the Court of Protection for a statutory will to be executed on P’s behalf. The terms of the statutory will were similar to the previous will but one of the changes made was to replace the executor from the Applicant to Withy King Solicitors. The Assistant Master Prime appointed Withy King Solicitors.
The Applicant appealed as he wished to be the sole executor and Sir Francis Ferris, a High Court Judge exercising his jurisdiction under Part VII of the Mental Health Act 1983, dismissed the appeal. At the same time, due to Mr Spiers retiring, the Applicant and his sister, who by then had resolved their differences, were appointed as interim receivers for a period of 3-6 months before the matter be reviewed.
The Applicant sought to appeal the decision of Sir Francis Ferris to the Court of Appeal and sought permission to do so pursuant to CPR 52.3(1) in relation to Sir Francis Ferris’ order.
It was held that the Applicant does not require permission to appeal as Sir Francis Ferris exercised his jurisdiction under Part VII of the 1983 Act and was not sitting in High Court. Therefore, CPR 52.3(1) did not apply. The Applicant was therefore at liberty to proceed with his appeal. However, since the appeal was to reinstate the Applicant as the sole executor, the Applicant had to show that he was able to act in harmony with his siblings. The Judge therefore advised to postpone the appeal until the interim receivers were reviewed and a substantive receiver be appointed.
To talk to someone, with no-obligation, who understands the practical issues mental incapacity brings and is experienced in dealing with them effectively and sensitively, please contact Martin Oliver or John Rouse.
