Power of Attorney documents can occasionally raise issues a court is required to adjudicate upon. In this article, Rose & Trust of Bristol look at some recent cases and provides commentary.
An important consideration when nominating more than one individual when preparing a power of attorney in Bristol is whether the attorneys act jointly or jointly and severally. The latter means they can act independently of the other attorneys. If they are to act only jointly, this usually means that on the death of one attorney, a new document would be required.
However in the case of Miles & Beattie v The Public Guardian EWHC 2960 (Ch) it was held that a joint attorney's survivor can continue to act if the LPA allows for reappointment. This is an important point and when preparing your LPA in Bristol, we can guide you through how this reappointment can be included.
In a nutshell if attorney A dies, the donor can reappoint joint attorney B to act alone or reappoint them to act with a replacement attorney or attorneys. If a replacement attorney dies, the donor can reappoint the remaining original and replacement attorneys to continue to act, and continue to reappoint until there is only one remaining attorney able to act.
Another far reaching decision was made in The Public Guardian's Severance Applications EWCOP 24 and the first consideration of the court was again in relation to the way in which the attorneys are nominated.
Specifically the court was asked whether one attorney can be given primary power over other attorneys nominated jointly and severally. The court decided that equality must prevail and the public guardian must apply for severance of any provision nominating a primary attorney.
Apart from being able to nominate individuals in different capacities under Power of Attorney, there are also different types of such documents. For example an ordinary power of attorney (OPA), allows the donor to nominate an attorney to act for specific time period, a temporary power, to handle the donors financial affairs. For example if a person requires time to recover from illness or will be away from the UK, a person can step in and act as attorney to manage their financial dealings.
The lasting power of attorney is the most common registered in the UK and not only can an attorney act on behalf of another for property and financial affairs, such as bank account, paying bills, and collecting pensions, it is also possible to nominate an attorney to make decisions about the donors Health & Welfare, such as medical care, daily routine, and moving into a care home. . However this latter power would only come into effect if the donor was to lose mental capacity.
The old enduring power of attorney is still lawful provided it was made before October 2007, however it is seen more as a relic of the past and has now been superseded by the new LPA's.
And finally for completeness we should mention the continuing power of attorney and combined power of attorney only available in Scotland. Here a donor can set up more than one type of power of attorney.
A donor can appoint any person as their attorney as long as they are over 18, have mental capacity, and agree to take on the role. If these criteria are met and the applicable paperwork submitted, a certificate is released and institutions, such as banks and building societies are legally obliged to allow an attorney to act in the exact same way as the donor himself.
Rose & Trust of Bristol offer a fixed fee Power of Attorney service in Bristol and we have many years of experience completing such documents for our clients. Contact us today to find out more.