Re Miles; The Public Guardian v Miles & ors [2014] EWCOP 40

Analysis

This was an application by the Public Guardian for the court to determine the validity of provisions in two lasting powers of attorney, one for property and affairs and one for health and welfare (the LPAs). The LPAs were made by by Mrs Miles on 27 November 2013. A solicitor called Mr Satchell drew them up.

Under the LPAs Mrs Miles appointed her husband and daughter as her attorneys under both powers; appointed her son as her replacement attorney; directed that her attorneys act jointly for some decisions and jointly and severally for others; selected option A in the health and welfare LPA, giving her attorneys power to refuse or consent to life-saving treatment; imposed restrictions on the LPAs; gave guidance to the attorneys; did not permit the attorneys to charge for their services; and directed that Mr Satchell be notified of their registration.

An application was made to the Office of the Public Guardian (the OPG) to register the LPAs and despite the OPG’s concerns with the wording of the appointments, they were registered on 17 June 2014. The OPG’s concerns as to the wording stemmed from the fact that on the failure of the joint power, the LPAs purported to appoint the surviving capable attorney to act as attorney alone. Further, in the event that the replacement attorney became attorney under the power owing to the failure of the preceding provisions, they purported to reappoint any of the initial attorneys remaining capable of acting to act with them on a joint and several basis. The relevant provisions were broadly similar in both LPAs.

The OPG applied for the court to direct whether the provisions were valid and if not for the court to sever the invalid provisions or alternatively to direct the cancellation of the registration of the LPAs under Sch 1 para 19(2) of the MCA 2005.

On behalf of the attorneys Mr Satchell made a statement describing the wording used as his usual practice. He made the points that given that there was no statutory restriction on the reappointments they should be effective and further that they were comparable to the valid appointment of substitute executors.

In the circumstances the court had to decide whether or not it was possible for the donor of an LPA to appoint more than one attorney to act jointly with survivorship by expressly reappointing the continuing attorney or attorneys.

Held

1. 1) Section 19(4) MCA 2005 allows the court to appoint two or more deputies to act jointly; jointly and severally; or jointly in respect of some matters and severally in respect of others. The choice given to the donor of an LPA was the same under s10(4) MCA 2005. The statutory forms prescribed for LPAs and the guidance to which those forms refer support this analysis in their similar wording.
2. 2) It would be possible to create the effect of appointing more than one attorney to act jointly with survivorship. However, because of the design of the statutory form this would have to be done by separate instruments.
3. 3) Mr Satchell’s points on the lack of a restriction in the statute on the reappointment of an attorney was unhelpful: if Parliament had intended what was purportedly done to be possible it would have expressly provided for it. Similarly, his analogy with executors was not apt: the appointment of attorneys is governed by its own primary and secondary legislation. It was not necessary to go beyond this to resolve the issue.
4. 4) There were further difficulties with the wording of the LPAs as the appointment of the replacement attorney was contingent and unpredictable and in conflict with the statutory requirements of s10(1) MCA 2005 in that it failed expressly to name an individual or a trust corporation. Similarly the wording of Part C of the prescribed form was in conflict with the wording.
5. 5) As a result the wording in s4 of the LPAs was partially ineffective and the court severed the offending wording. The remaining wording preserved the original attorneys’ appointments (to act jointly in respect of various decisions and jointly and severally in respect of the remainder) and provided that the replacement attorney should act where both of the initial attorneys predeceased the donor or were unwilling or unable to act, or the appointment of one of them failed for any reason.
6. 6) Notice of severance given to the OPG under Para 19 of Sch 1 MCA 2005.
7. 7) No order as to costs.

JUDGMENT SENIOR JUDGE LUSH: [1] This is an application by the Public Guardian for the court to determine the validity of a provision in a lasting power of attorney (LPA). [2] Section 23(1) of the Mental Capacity Act 2005 provides that ‘the court may determine any question as to the meaning or effect of a …

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