When the court steps in

Sunday, 01 December 2013
Amanda Edwards considers the available remedies for errors in lasting and enduring powers of attorney.

Preparing a lasting power of attorney (LPA) presents many pitfalls for anyone who wants to give another person power to act on their behalf in property and financial affairs. This might be to be ready for sudden illness or incapacity, or simply for convenience. An LPA is needed if the donor wants the power to remain valid even if they lose capacity, as opposed to a general power of attorney that ceases on incapacity. LPAs, however, are lengthy and tricky to complete; common defects include uncrossed boxes, incomplete sections, improperly witnessed signatures and omitted names, addresses and dates of birth.

In Re Barker,1 for example, Mr Barker made an LPA in January 2008. On registration there were two difficulties: first, his son objected, and second, the Office of the Public Guardian (OPG) rejected the application as the solicitor who provided the certificate of the donor’s mental capacity had not crossed the first of the two boxes at the beginning of the certificate to confirm that he was not disqualified from providing it. On 1 May 2008 Mr Barker created another LPA, and the solicitor repeated the same mistake on the certificate.

It may be possible to sever the offending provisions of an EPA; the Court of Protection often takes a pragmatic approach

Mistakes in LPAs are usually found soon after creation, when an application to register is made and queries are raised. Donors are encouraged to register the LPA swiftly, and it is not effective until registered. Postponing registration risks delaying when problems are found – perhaps until the donor is no longer able to make a new LPA.

By contrast, errors in the predecessor powers to LPAs, enduring powers of attorney (EPAs), may take years to come to light. This is because an EPA can be used before registration unless the donor has included a restriction that it can be used only after the onset of incapacity. The point at which an EPA needs to be registered because of incipient incapacity is when errors may first be noticed and the EPA rejected. All may not be lost, however, as different kinds of defects fall into three categories:

  • immaterial defects that can be easily rectified;
  • more substantive defects that can be remedied, for example by severing an offending clause; and
  • material defects that cannot be remedied.

Immaterial defects in EPAs

Immaterial defects in EPAs usually involve missing information that can be easily supplied, such as the donor’s date of birth. In cases involving an omitted date of signing and the address of a witness, the EPAs were accepted once extrinsic evidence was provided.

Substantive defects that may be remedied

In Re Smith,2 the prescribed wording on Part C of the EPA form3 signed by the attorney had accidentally been deleted, but the Court of Protection (CoP) reinstated the words and registered the EPA.

An EPA may include directions or restrictions that are not permitted. In such a case, it may be possible to sever the offending provision(s); the CoP often takes a pragmatic approach.

In Re Bridge,4 the CoP reviewed a provision on the authority to act of joint and several attorneys: ‘Two of the three can deal with any household or everyday expenses, but for any other issues I would like all three attorneys to be signatories.’ What counts as ‘household or everyday expenses’; which ‘two of the three’ attorneys should act? This restriction was severed.

Material defects

Material defects that cannot be rectified will render the EPA invalid. These might include omission of essential parts of the EPA, incorrect dates, or missing signatures or names.

If an EPA fails to meet the requirements of a valid EPA, it may still be recognised as an ordinary power.5 This is not the case for a failed LPA, as the statute provides that an instruction that purports to create an LPA but does not comply with the requirements of the legislation ‘confers no authority’.6

Although it has not been possible to make an EPA since 1 October 2007, many were created before then and can still be used. Indeed, many were created just before that deadline, so the question of defects and whether and how they can be remedied will remain for some time.

  • 1. November 2008, Court of Protection
  • 2. 7 December 2009, Court of Protection
  • 3. ‘I also understand my limited power to use the donor’s property to benefit persons other than the donor’
  • 4. 25 September 2009, Court of Protection
  • 5. Mental Capacity Act 2005, schedule 4, para 20(4)
  • 6. Mental Capacity Act 2005, s9(3)
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Amanda Edwards

Amanda Edwards TEP is an Associate in the Private Client and Tax department at Boodle Hatfield LLP.

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