Re WP [2015] EWCOP 84

Analysis

The applicants (the attorneys) were joint attorneys of their parents WP (who had died in 2015) and EP (the parents) under enduring powers of attorney (EPAs). There was a further sibling, S, who was not an attorney. The EPAs were registered in October 2009. The parents had joint income in 2014/15 of £29,077 and expenditure of £21,256. This expenditure included unauthorised payments of £150 per month to each one of their children. Their sister S instigated an investigation by the Office of the Public Guardian, and the Public Guardian requested that the attorneys seek retrospective approval of the £150 gifts. In their application, the attorneys requested approval of the payments on the basis that they represented (1) travelling expenses; (2) remuneration for acting as attorneys; (3) a ‘gratuitous’ care allowance. They calculated their mileage rate as 45p per mile, a figure derived from rates issued by HM Revenue and Customs.

Held:

1. 1. 1) Attorneys are expected to act out of common decency and not profit from their position. Accordingly the ‘business’ mileage allowance quoted by HM Revenue and Customs should be discounted.
   2. 2) Although the court had power under sch4, para 16(2)(b)(iii) to give directions with respect to remuneration or expenses, it was not appropriate for the attorneys to be remunerated for acting as such in the circumstances of this case. There was nothing to suggest payment on a quantum meruit basis and there was nothing exceptional about the paperwork they had completed.
   3. 3) Despite this, the £150 payments were in their parents’ best interests because they provided services required to meet their parents’ care needs and the payments were affordable and sustainable, representing a considerable saving on the commercial cost of providing these services. These enabled the parents to remain in their own home for as long as possible.

4) It was therefore appropriate to approve the monthly payments retrospectively and to give ongoing approval. There was a need to strike a balance between ensuring the attorneys were not financially disadvantaged by their position and ensuring that they are not making a profit.

SENIOR JUDGE LUSH: [1] This is an application by two attorneys acting jointly under two separate Enduring Powers of Attorney for the retrospective approval of monthly payments of £150 each that they have made to themselves and to their sister from the donors’ funds. The background [2] Bill was born on 20 February 1921 and …

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