England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 March 2009

Mr Justice Lewison:

1. On 9 February 2007 Mr J executed a document, the relevant parts of which read:

"I … appoint my wife [W] to be my Attorney for the purposes [of the] Enduring Powers of Attorney Act 1985 but if she shall have predeceased me or shall be unable to act or to continue to act as my Attorney whether registered or unregistered then in the alternative I appoint my son [A] and my son [B] and my son [C] jointly and severally to be my attorney(s) for the purpose of the Enduring Powers of Attorney Act 1985 with general authority to act on my behalf in relation to all my property and affairs."

2. This form was based on Form 147 in volume 31 of the Encyclopaedia of Forms and Precedents. The short but difficult question is: is it a valid enduring power of attorney?
3. The Public Guardian, represented before me by Mr David Rees, has taken the view that it is invalid because it purports to appoint attorneys in the alternative. Even if that is not prohibited, a valid enduring power of attorney cannot appoint successive attorneys where (as here) the power contemplates that one of the attorneys might begin to act before subsequently ceasing to act. Mr J's wife, W, represented before me by Ms Sandells, says that there is nothing wrong with the enduring power, and that now that Mr J has ceased to have mental capacity the power should be registered. She considers herself unable to act, and wishes the power to be registered so that her sons can act as Mr J's attorneys.
4. At common law a power of attorney is an agency created by deed. The agency thus created was terminated by the subsequent loss of mental capacity of the donor of the power. This consequence of loss of mental capacity was widely perceived as a defect in the law; and the Law Commission proposed changing it. Following the publication of both a working paper and a report (The Incapacitated Principal Law Com No 122) the Enduring Powers of Attorney Bill was introduced into Parliament and was enacted as the Enduring Powers of Attorney Act 1985.
5. Since 1 October 2007, when the Mental Capacity Act 2005 came into force, it has no longer been possible to create an enduring power of attorney. Now the way of creating a power of attorney which survives the mental incapacity of the donor of the power is by the creation of a lasting power of attorney. However, enduring powers of attorney created before that date continue to have effect. The law applicable to such powers is now contained in Schedule 4 to the Mental Capacity Act 2005, which substantially re-enacts the Enduring Powers of Attorney Act 1985. The relevant parts of that Schedule are set out in Appendix 1 to this judgment. One of the main changes, however, is a change in procedure. Before 1 October 2007 the Court of Protection dealt with both the legal and administrative aspects of enduring powers of attorney. Since then the Court of Protection continues to deal with the legal aspects; but the Public Guardian deals with administrative aspects, and in particular the registration of powers.
6. The essential features of an enduring power of attorney are these.

i) An enduring power of attorney is a sub-species of powers of attorney generally (Schedule 4 para. 1). Thus it must comply with the formalities necessary to create a power of attorney. It follows from this that, unless qualified by a restriction in the instrument itself, an enduring power of attorney will take effect immediately.

ii) An enduring power of attorney must comply with additional formalities. These include a requirement that the instrument must be in a prescribed form; and that it must be executed not only by the donor of the power but also by the attorney (Schedule 4 para. 2).

iii) If an instrument appoints more than one person to be an attorney it must state whether they are appointed to act jointly, or jointly and severally (Schedule 4 para. 20).

iv) An enduring power of attorney may contain conditions or restrictions which limit the authority conferred on the attorney by the power (Schedule 4 para. 3).

v) There is no limit to the number of enduring powers that a donor can create; and they may exist concurrently or successively: Re E (Enduring Powers of Attorney) [2001] Ch 364, 373E.

vi) If the formalities are complied with, an enduring power of attorney will not be revoked by any subsequent mental incapacity of the donor (Schedule 4 para.1).

vii) As soon as an attorney under an enduring power of attorney has reason to believe that the donor is or is becoming mentally incapable, he must apply to the Public Guardian to register the power (Schedule 4 para. 4)

viii) Registration is not discretionary. The Public Guardian must register the power unless one or more of five specified grounds of objection are made out. If any of the specified grounds are made out, then he must not register the power (Schedule 4 para.13). The five specified grounds are contained in Schedule 4 paragraph 13 (9).

ix) Once the power has been registered it cannot be revoked without an order of the court; and the donor cannot extend or restrict the scope of the power or give instructions to the attorney (Schedule 4 para.15).

7. Some of these essential features of the scheme call for further comment at this stage. First, the instrument creating the power must be made in the prescribed form. Various forms have been prescribed over the years. The operative parts of the form prescribed by the Enduring Powers of Attorney (Prescribed Form) Regulations 1990 are reproduced as Appendix 2 to this judgment. Regulation 2 (1) of those Regulations states:

"Subject to paragraphs (2) and (3) of this regulation and to regulation 4, an enduring power of attorney must be in the form set out in the Schedule to these Regulations and must include all the explanatory information headed "About using this form" in Part A of the Schedule and all the relevant marginal notes to Parts B and C. It may also include such additions (including paragraph numbers) or restrictions as the donor may decide."

8. Thus, subject to the specified provisions, regulation 2 (1) positively allows the donor to make additions to the prescribed form. Regulation 2 (2) deals with certain other aspects of the form of the instrument. In particular there must be excluded one (and only one) of any pair of alternatives. One pair of alternatives is "jointly" and "jointly and severally" in Part A of the form. Thus one of these alternatives must be omitted or deleted. Regulation 2 (3) is not relevant for present purposes. Regulation 4 provides:

"Where more than one attorney is appointed and they are to act jointly and severally, then at least one of the attorneys so appointed must execute the instrument for it to take effect as an enduring power of attorney, and only those attorneys who have executed the instrument shall have the functions of an attorney under an enduring power of attorney in the event of the donor's mental incapacity or of the registration of the power, whichever first occurs."

9. Second, the power may contain conditions or restrictions. There is no limitation on the nature of the conditions or restrictions, except that they must not conflict with anything that the Act positively forbids. A condition may, for instance, be a condition precedent to the coming into operation of the power (e.g. "This power shall not be exercisable unless two medical practitioners have certified that I lack mental capacity" or "This power shall not be exercisable unless I have lacked mental capacity for more than three months"). It may be a restriction on the kind of asset with which the attorney may deal (e.g. "This power does not extend to any sale charge or other disposition of land in which I have an interest"); or may place limitations on the manner in which the attorney may deal with a particular asset (e.g. "My attorney may not sell or charge any dwelling in which I reside without the written consent of my spouse").
10. Third, since there is no limit to the number of enduring powers of attorney that a donor may create a donor may create one enduring power of attorney governing his bank account and another governing his home; or one enduring power of attorney dealing with his property in England, and another dealing with his property in Wales. Given the ability to place temporal conditions or limitations on the operation of an enduring power of attorney it is also possible to create powers which will have alternative operation. Thus a donor may create one power in favour of his wife and another in favour of his children, the latter being subject to a condition that it is not to come into operation unless his wife disclaims under the first power. The same technique may be used to create enduring powers of attorney that have successive operation. Thus a donor may create one power in favour of his wife and another in favour of his children, subject to a restriction that it is not to come into operation during his wife's lifetime.
11. Fourth, the duty to apply for registration applies to every enduring power that a donor has created. Thus if the donor has created one power in favour of his wife, and another in favour of his children, the latter not to come into force during his wife's lifetime, both his wife and his children must apply to register their respective powers if they have reason to believe that the donor has become or is becoming mentally incapable. As mentioned, the Public Guardian must register the power unless one of the specified grounds of objection is made out. It is not a specified ground of objection that a condition precedent to the operation of the power has not yet been satisfied. In the case just mentioned, therefore, the Public Guardian must register both powers. The Act makes provision for what is called "qualified registration". This arises only under paragraphs 20 (6) and (7) of Schedule 4. It applies only in the case of joint and several attorneys where a ground of objection is made out against one or more of them but not all. In such a case the entry in the register must be stamped with the words:

"The registration of this enduring power of attorney is qualified and extends to [name of attorney(s) not affected by the objection] only as the attorney(s) of [name of donor]"

12. There is no other power to make a qualified registration. Once a power of attorney has been registered, the Public Guardian must keep a copy of it; and return the original to the person or persons who applied for registration.
13. Fifth, because the duty to register only arises when the donor has become or is becoming mentally incapable, the power of attorney is likely to be scrutinised for the first time by the Public Guardian at a time when, if it is invalid as an enduring power of attorney because of some technical defect, it is probably too late for the donor to execute another one. This, in turn, means that the donor's affairs will have to be administered by a deputy, which is likely to be more cumbersome, more expensive and more public than administration by attorneys of the donor's choice. One of the important policies of the Mental Capacity Act 2005 is that, so far as possible consistent with his best interests, a protected person's wishes should be taken into account and respected.
14. It is common ground that, as mentioned, a donor can achieve the effect of successive attorneyships by executing two or more separate enduring powers of attorney. If a donor can achieve a particular legal effect by two pieces of paper, why can he not achieve the same effect by one? The Public Guardian says that the answer to this question is that paragraph 20 (1) of the Schedule precludes that. Paragraph 20 says:

"(1) An instrument which appoints more than one person to be an attorney cannot create an enduring power unless the attorneys are appointed to act—

(a) jointly, or

(b) jointly and severally."

15. The Public Guardian says that anyone named by the instrument as a present or future attorney (even if the power to act as attorney is contingent on satisfaction of a condition precedent) is an "attorney" both for the purposes of the requirement to execute the instrument creating the enduring power of attorney and also for the purposes of paragraph 20. Thus the instrument must state whether all those named are to act jointly or whether all those named are to act jointly and severally. There can be no mix and match, because one of the two alternatives must be deleted or omitted; otherwise the instrument will not satisfy the statutory requirement that it must be made in the prescribed form. It therefore follows that a purported enduring power conferring power of attorney on W (acting alone) or failing her on A, B and C (acting jointly) or a purported power conferring power of attorney on W (acting alone) and subsequently to A, B and C (acting jointly and severally) fails to comply with paragraph 20 (1) and thus cannot be an enduring power of attorney.
16. It is fair to say that opinions have differed over the years about whether this is the correct construction of the section. I was shown articles in legal publications by the Assistant Public Trustee which suggested that it was not; booklets issued for public guidance by the Public Trust Office and the Public Guardianship Office which also suggested that it was not. On the other hand, I was also shown extracts from textbooks which suggested that it was. None of these publications gave reasons for their conclusions so they were of limited assistance. I was also shown examples of powers of attorney in the form of that in the present case which the Court of Protection had registered as valid enduring powers of attorney. In those cases the registration was qualified by stamping the power of attorney with words to the effect that it took effect only as regards particular named attorneys.
17. In support of the Public Guardian's submission Mr Rees relied on passages from the Law Commission's report that preceded the Enduring Powers of Attorney Act 1985. In paragraph 4.92 of their report the Commission said:

"Thus the EPA donor might prefer to appoint not just, say, his spouse as attorney but his children as well. He might create a joint power so that all the attorneys would have to act together or a joint and several power which would be operated by all or any of them."

18. Footnote 214 to that paragraph said:

"We do not recommend that an instrument should be able to provide for successive EPAs; that is, one or more attorneys who would replace the original attorney or attorneys should he or they cease to act. Our main reason for this is that the benefit to be gained by including successive EPAs in our proposals would be out of all proportion to the complexity that such powers would create in relation to some of the more detailed areas of our scheme. In any event, successive EPAs are rendered largely unnecessary because a joint and several EPA would permit the continuation of the EPA in the event of one of the attorneys ceasing to act. It would, however, be possible to create the effect of successiveness by a donor granting EPAs in separate instruments so that the authority of an attorney under one power could commence only upon the termination of the authority of an attorney under another power."

19. There are two points to be made about this footnote. First, it is only a footnote. It did not form part of the main text of the report, let alone the report's recommendations. Second, it is not a positive recommendation one way or another. Still less is it a firm prohibition. Nevertheless it deserves consideration, if only to try to see what complexities the Law Commission had in mind (which the report itself did not identify).
20. Mr Rees summarised the difficulties or complexities as follows:

i) The prescribed forms would have needed to be differently worded. This is, in essence, the point that the donor must choose between the two alternatives of "joint" on the one hand or "joint and several" on the other. There are, I think, at least two answers to this. First, although regulations made under and contemporaneously with an Act of Parliament are part of the context, they cannot add to or detract from the proper interpretation of the Act. A recent example of a case in which the draftsman of a prescribed form misunderstood the Act under which the form was prescribed is Scottish & Newcastle plc v Raguz [2008] 1 WLR 2494 Second, regulation 2 (1) expressly permits additions to the prescribed form. I cannot see why that would prevent a donor of an enduring power of attorney from specifying two sets of attorneys, provided that it is made clear in relation to each set whether they are to act jointly on the one hand or jointly and severally on the other.

ii) There would be additional complexity in the registration process. Mr Rees put it thus.

"The legislation and rules would need to address the question of how such a power should be registered. If an instrument appoints A to act alone and then B and C to act jointly and severally, how is registration to be effected? Does the court simply register the instrument without qualification? If so, if an objector wishes to object to the registration of B as being unsuitable, does he need to object at this stage even though B cannot act whilst A is acting? If the registration is unqualified, how is a person dealing with B or C to know whether A's powers have come to an end?"

The answer to the first question is that since a qualified registration may only be made in very limited circumstances (of which this is not one) the registration must be unqualified. To that extent I can see no warrant for the practice developed by the Court of Protection of registering such powers as enduring powers of attorney but with qualifications. But the consequential problem that Mr Rees identifies is equally present if (as the Law Commission expressly contemplated) the donor executes two enduring powers of attorney, one in favour of A and the other a contingent power in favour of B and C. Both must be registered as soon as the donor loses mental capacity. An objector would have to object to the registration of the power in favour of B and C, even though B and C cannot act while A is acting. If the objection fails, then both enduring powers would be registered without qualification. So far as third parties are concerned, once again the same problem exists even if two powers are created by two separate instruments. Indeed the problem may even worse for third parties, because there will be two separate original instruments, each bearing the Public Guardian's stamp. If there is only one instrument, the attorney acting for the time being will have the original. In addition, since non-fulfilment of a condition precedent contained in an instrument is not a valid ground for objection, a third party may still face the difficulty of knowing whether a conditional registered enduring power of attorney has come into operation, whichever construction of the Act is the right one.

iii) Mr Rees did suggest in oral argument that the fact that there was only one original stamped instrument might present a problem if the instrument purported to appoint successive attorneys. But that problem (if it is a problem) would exist in any case where more than one attorney is appointed to act concurrently, and (if it is a problem) would be particularly acute where the attorneys may act jointly and severally, because one attorney, acting alone, might not have the original instrument. And, as I have pointed out, the existence of only one original stamped instrument may itself guard against potential abuse of a registered enduring power of attorney where two or more powers would otherwise have been registered without qualification.

21. I do not think that any other alleged complexities were identified. On examination they turn out either not to be complexities at all, or, to the extent that they are complexities they are complexities which are at any rate not increased by doing in one piece of paper what everyone accepts you can do in two. To the extent, then, that the Law Commission's view was based on complexities, it was not, in my judgment, a soundly based one. No other reason of policy was suggested for reaching the conclusion that what you can do by two pieces of paper you cannot also do by one. Such policy reasons as there are seem to me to point to the conclusion that it does not matter whether you use one piece of paper or two.

i) The principal policy objective of the 1985 Act was to abolish the common law rule that a power of attorney was revoked by the subsequent mental incapacity of the donor. The construction for which W contends does not undermine that policy.

ii) At common law, the appointment of successive attorneys is valid, and where the meaning of an Act is doubtful, Parliament is taken to have intended the least alteration of the common law.

iii) The Mental Capacity Act 2005, in which the current provisions are to be found, has as one of its policy objectives the encouragement of autonomy of protected persons. The Law Commission's report, on which the 1985 Act was based, also stressed the importance of the principle that people should be able to make such arrangements for the management of their affairs as they please.

iv) The Schedule should not be construed so as to leave technical traps for donors of powers, where the effect of falling into the trap may be irremediable once the problem has been identified.

v) There can be no doubt that a will appointing alternative or successive trustees would be valid to deal with the management of the affairs of a deceased person after his death. Why should it be any different for the management of his affairs during his lifetime?

22. So it seems to me that the question is whether paragraph 20 can be construed so as to permit the execution of an enduring power of attorney in the form of the one in this case.
23. In addition to the general considerations that I have mentioned above, I am also struck by the clear prohibition contained in paragraph 2 (6) of the Schedule which says:

"A power of attorney which gives the attorney a right to appoint a substitute or successor cannot be an enduring power."

24. Given the clarity of this provision, it would be surprising if a similar prohibition applied to the donor of the power by the oblique and indirect drafting of paragraph 20.
25. The persons named in the instrument as actual or contingent attorneys are, I think, within the meaning of the word "attorney" as used in paragraph 20 of the Schedule. So paragraph 20 is engaged where an enduring power purports to appoint successive attorneys. Ms Sandells, for W, submitted that paragraph 20 should be construed as meaning that a valid enduring power of attorney must state whether, in the event that they exercise the power, the attorneys must exercise it jointly or jointly and severally. That, she said, was the correct meaning to be given to the phrase "appointed to act". Provided that an instrument makes this clear it complies with paragraph 20. If and in so far as additional words need to be added to the prescribed form to repeat the designation of each set of attorneys, this is permitted by regulation 2. In my judgment this is a permissible reading of paragraph 20, and I hold that it is the correct one. I further consider that this construction applies whether the power of attorney purports to appoint attorneys in the alternative or in succession. What is important is that the power makes clear whether, while they are acting, the attorneys are to act jointly, or jointly and severally.
26. I conclude, therefore, that the power of attorney in the present case is a valid enduring power of attorney and must be registered without qualification.
27. My conclusion on this question makes it unnecessary for me to consider whether there is a power of severance and, if so, what limits (if any) there are upon its exercise. Since that is a difficult question, I prefer to leave it for a case in which it arises.
APPENDIX 1

Enduring power of attorney to survive mental incapacity of donor

1 (1) Where an individual has created a power of attorney which is an enduring power within the meaning of this Schedule—

(a) the power is not revoked by any subsequent mental incapacity of his,

(b) upon such incapacity supervening, the donee of the power may not do anything under the authority of the power except as provided by sub-paragraph (2) unless or until the instrument creating the power is registered under paragraph 13, and

(c) if and so long as paragraph (b) operates to suspend the donee's authority to act under the power, section 5 of the Powers of Attorney Act 1971 (c. 27) (protection of donee and third persons), so far as applicable, applies as if the power had been revoked by the donor's mental incapacity,

and, accordingly, section 1 of this Act does not apply.

Characteristics of an enduring power of attorney

2 (1) Subject to sub-paragraphs (5) and (6) and paragraph 20, a power of attorney is an enduring power within the meaning of this Schedule if the instrument which creates the power—

(a) is in the prescribed form,

(b) was executed in the prescribed manner by the donor and the attorney, and

(c) incorporated at the time of execution by the donor the prescribed explanatory information.

(2) In this paragraph, "prescribed" means prescribed by such of the following regulations as applied when the instrument was executed—

(a) the Enduring Powers of Attorney (Prescribed Form) Regulations 1986,

(b) the Enduring Powers of Attorney (Prescribed Form) Regulations 1987,

(c) the Enduring Powers of Attorney (Prescribed Form) Regulations 1990,

(d) the Enduring Powers of Attorney (Welsh Language Prescribed Form) Regulations 2000.

(3) An instrument in the prescribed form purporting to have been executed in the prescribed manner is to be taken, in the absence of evidence to the contrary, to be a document which incorporated at the time of execution by the donor the prescribed explanatory information.

(4) If an instrument differs in an immaterial respect in form or mode of expression from the prescribed form it is to be treated as sufficient in point of form and expression.

(5) A power of attorney cannot be an enduring power unless, when he executes the instrument creating it, the attorney is—

(a) an individual who has reached 18 and is not bankrupt, or

(b) a trust corporation.

(6) A power of attorney which gives the attorney a right to appoint a substitute or successor cannot be an enduring power.

(7) An enduring power is revoked by the bankruptcy of the donor or attorney.

(8) But where the donor or attorney is bankrupt merely because an interim bankruptcy restrictions order has effect in respect of him, the power is suspended for so long as the order has effect.

(9) An enduring power is revoked if the court—

(a) exercises a power under sections 16 to 20 in relation to the donor, and

(b) directs that the enduring power is to be revoked.

(10) No disclaimer of an enduring power, whether by deed or otherwise, is valid unless and until the attorney gives notice of it to the donor or, where paragraph 4(6) or 15(1) applies, to the Public Guardian.

Scope of authority etc. of attorney under enduring power

3 (1) If the instrument which creates an enduring power of attorney is expressed to confer general authority on the attorney, the instrument operates to confer, subject to—

(a) the restriction imposed by sub-paragraph (3), and

(b) any conditions or restrictions contained in the instrument,

authority to do on behalf of the donor anything which the donor could lawfully do by an attorney at the time when the donor executed the instrument.

Duties of attorney in event of actual or impending incapacity of donor

4 (1) Sub-paragraphs (2) to (6) apply if the attorney under an enduring power has reason to believe that the donor is or is becoming mentally incapable.

(2) The attorney must, as soon as practicable, make an application to the Public Guardian for the registration of the instrument creating the power.

(3) Before making an application for registration the attorney must comply with the provisions as to notice set out in Part 3 of this Schedule.

(4) An application for registration—

(a) must be made in the prescribed form, and

(b) must contain such statements as may be prescribed.

Registration of instrument creating power

13 (1) If an application is made in accordance with paragraph 4(3) and (4) the Public Guardian must, subject to the provisions of this paragraph, register the instrument to which the application relates.

(2) If it appears to the Public Guardian that—

(a) there is a deputy appointed for the donor of the power created by the instrument, and

(b) the powers conferred on the deputy would, if the instrument were registered, to any extent conflict with the powers conferred on the attorney,

the Public Guardian must not register the instrument except in accordance with the court's directions.

(3) The court may, on the application of the attorney, direct the Public Guardian to register an instrument even though notice has not been given as required by paragraph 4(3) and Part 3 of this Schedule to a person entitled to receive it, if the court is satisfied—

(a) that it was undesirable or impracticable for the attorney to give notice to that person, or

(b) that no useful purpose is likely to be served by giving him notice.

(4) Sub-paragraph (5) applies if, before the end of the period of 5 weeks beginning with the date (or the latest date) on which the attorney gave notice under paragraph 5 of an application for registration, the Public Guardian receives a valid notice of objection to the registration from a person entitled to notice of the application.

(5) The Public Guardian must not register the instrument except in accordance with the court's directions.

(6) Sub-paragraph (7) applies if, in the case of an application for registration—

(a) it appears from the application that there is no one to whom notice has been given under paragraph 5, or

(b) the Public Guardian has reason to believe that appropriate inquiries might bring to light evidence on which he could be satisfied that one of the grounds of objection set out in sub-paragraph (9) was established.

(7) The Public Guardian—

(a) must not register the instrument, and

(b) must undertake such inquiries as he thinks appropriate in all the circumstances.

(8) If, having complied with sub-paragraph (7)(b), the Public Guardian is satisfied that one of the grounds of objection set out in sub-paragraph (9) is established—

(a) the attorney may apply to the court for directions, and

(b) the Public Guardian must not register the instrument except in accordance with the court's directions.

(9) A notice of objection under this paragraph is valid if made on one or more of the following grounds—

(a) that the power purported to have been created by the instrument was not valid as an enduring power of attorney,

(b) that the power created by the instrument no longer subsists,

(c) that the application is premature because the donor is not yet becoming mentally incapable,

(d) that fraud or undue pressure was used to induce the donor to create the power,

(e) that, having regard to all the circumstances and in particular the attorney's relationship to or connection with the donor, the attorney is unsuitable to be the donor's attorney.

(10) If any of those grounds is established to the satisfaction of the court it must direct the Public Guardian not to register the instrument, but if not so satisfied it must direct its registration.

(11) If the court directs the Public Guardian not to register an instrument because it is satisfied that the ground in sub-paragraph (9)(d) or (e) is established, it must by order revoke the power created by the instrument.

(12) If the court directs the Public Guardian not to register an instrument because it is satisfied that any ground in sub-paragraph (9) except that in paragraph (c) is established, the instrument must be delivered up to be cancelled unless the court otherwise directs.

Register of enduring powers

14 The Public Guardian has the function of establishing and maintaining a register of enduring powers for the purposes of this Schedule.

Effect and proof of registration

15 (1) The effect of the registration of an instrument under paragraph 13 is that—

(a) no revocation of the power by the donor is valid unless and until the court confirms the revocation under paragraph 16(3);

(b) no disclaimer of the power is valid unless and until the attorney gives notice of it to the Public Guardian;

(c) the donor may not extend or restrict the scope of the authority conferred by the instrument and no instruction or consent given by him after registration, in the case of a consent, confers any right and, in the case of an instruction, imposes or confers any obligation or right on or creates any liability of the attorney or other persons having notice of the instruction or consent.

Application to joint and joint and several attorneys

20 (1) An instrument which appoints more than one person to be an attorney cannot create an enduring power unless the attorneys are appointed to act—

(a) jointly, or

(b) jointly and severally.

(2) This Schedule, in its application to joint attorneys, applies to them collectively as it applies to a single attorney but subject to the modifications specified in paragraph 21.

(3) This Schedule, in its application to joint and several attorneys, applies with the modifications specified in sub-paragraphs (4) to (7) and in paragraph 22.

(4) A failure, as respects any one attorney, to comply with the requirements for the creation of enduring powers—

(a) prevents the instrument from creating such a power in his case, but

(b) does not affect its efficacy for that purpose as respects the other or others or its efficacy in his case for the purpose of creating a power of attorney which is not an enduring power.

(5) If one or more but not both or all the attorneys makes or joins in making an application for registration of the instrument—

(a) an attorney who is not an applicant as well as one who is may act pending the registration of the instrument as provided in paragraph 1(2),

(b) notice of the application must also be given under Part 3 of this Schedule to the other attorney or attorneys, and

(c) objection may validly be taken to the registration on a ground relating to an attorney or to the power of an attorney who is not an applicant as well as to one or the power of one who is an applicant.

(6) The Public Guardian is not precluded by paragraph 13(5) or (8) from registering an instrument and the court must not direct him not to do so under paragraph 13(10) if an enduring power subsists as respects some attorney who is not affected by the ground or grounds of the objection in question; and where the Public Guardian registers an instrument in that case, he must make against the registration an entry in the prescribed form.

(7) Sub-paragraph (6) does not preclude the court from revoking a power in so far as it confers a power on any other attorney in respect of whom the ground in paragraph 13(9)(d) or (e) is established; and where any ground in paragraph 13(9) affecting any other attorney is established the court must direct the Public Guardian to make against the registration an entry in the prescribed form.

(8) In sub-paragraph (4), "the requirements for the creation of enduring powers" means the provisions of—

(a) paragraph 2 other than sub-paragraphs (8) and (9), and

(b) the regulations mentioned in paragraph 2.

Joint attorneys

21 (1) In paragraph 2(5), the reference to the time when the attorney executes the instrument is to be read as a reference to the time when the second or last attorney executes the instrument.

(2) In paragraph 2(6) to (8), the reference to the attorney is to be read as a reference to any attorney under the power.

(3) Paragraph 13 has effect as if the ground of objection to the registration of the instrument specified in sub-paragraph (9)(e) applied to any attorney under the power.

(4) In paragraph 16(2), references to the attorney are to be read as including references to any attorney under the power.

(5) In paragraph 16(4), references to the attorney are to be read as including references to any attorney under the power.

(6) In paragraph 17, references to the attorney are to be read as including references to any attorney under the power.

Joint and several attorneys

22 (1) In paragraph 2(7), the reference to the bankruptcy of the attorney is to be read as a reference to the bankruptcy of the last remaining attorney under the power; and the bankruptcy of any other attorney under the power causes that person to cease to be an attorney under the power.

(2) In paragraph 2(8), the reference to the suspension of the power is to be read as a reference to its suspension in so far as it relates to the attorney in respect of whom the interim bankruptcy restrictions order has effect.

(3) The restriction upon disclaimer imposed by paragraph 4(6) applies only to those attorneys who have reason to believe that the donor is or is becoming mentally incapable.

APPENDIX 2





Part C: To be completed by the attorney(s)

Note:
1. This form may be adapted to provide for execution by a corporation

2. If there is more than one attorney additional sheets in the form as shown below must be added to this Part C