J, Re (Enduring Power of Attorney)

An enduring power of attorney may appoint attorneys in the alternative or in succession. The requirement that multiple attorneys be appointed to act jointly or jointly and severally concerns the manner in which each relevant set of attorneys acts while exercising the power. It does not prevent a donor from providing for different attorneys to act at different times, provided the instrument makes the position clear. Additions to the prescribed form are permitted where they do not conflict with the statutory scheme. A valid power must be registered without qualification unless a statutory ground of objection is established; qualified registration is available only within the circumstances specified by Schedule 4.

Mr J executed an enduring power of attorney appointing his wife as attorney, with his three sons appointed jointly and severally in the alternative if she had predeceased him or was unable to act. After Mr J lost mental capacity, his wife considered herself unable to act and sought registration so that the sons could act.

The Public Guardian argued that the instrument was invalid because it appointed alternative or successive attorneys and did not provide that all named attorneys would act on the same joint or joint-and-several basis. The Court of Protection had to determine whether the instrument was a valid enduring power of attorney and, if so, whether it should be registered with or without qualification.

1. Validity. The instrument was a valid enduring power of attorney. Paragraph 20(1) of Schedule 4 to the Mental Capacity Act 2005 is engaged where an instrument appoints alternative or successive attorneys, but it can properly be read as requiring the instrument to state whether each set of attorneys is to act jointly or jointly and severally while acting.
2. The statutory scheme does not prohibit successive attorneyships. A donor may achieve successive operation through separate enduring powers of attorney, and there was no sufficient reason to prevent the same result being achieved in one instrument. The ability to add material to the prescribed form supported that construction.
3. The express prohibition in paragraph 2(6), against an attorney having a right to appoint a substitute or successor, made it unlikely that a similar prohibition was intended to apply indirectly to a donor appointing alternative or successive attorneys through paragraph 20.
4. The Law Commission’s view that successive enduring powers should not be included was contained in a footnote and was not a firm statutory prohibition. The practical difficulties identified by the Public Guardian did not justify a different construction. Similar registration issues could arise where separate instruments were used, which the legislation plainly permitted.
5. Registration was mandatory unless a specified ground of objection was established. The power therefore had to be registered without qualification. Qualified registration was confined to the circumstances specified in paragraphs 20(6) and (7), which did not apply here.
6. The court did not decide whether a power of severance existed or what limits might apply to it, leaving that question for a case in which it arose.