References: [2000] EWHC Ch 144, [2001] Ch 364, [2000] 1 FLR 882, [2000] 3 All ER 1004, [2000] 3 WLR 1974
Links: Bailii
Coram: Mrs Justice Arden DBE
Ratio:The application was an appeal against an order registering an enduring power of attorney. The appeal from Master Lush was by way of rehearing. The donor had executed two powers. The second was invalid, and the donees of the first power sought to register that. It was objected that the second power revoked the first.
Held: The court could seek assistance from the law commission report which led to the Act. The Act was silent as to whether a second power revoked an earlier one by implication. Parliament had allowed that more than one power should exist. When a power is revoked notice must be given to the donee. There was no implicit revocation. The further suggestion that the two earlier donees were unsuitable because of their personal conflict with the third was negatived by the fact that the donor’s choice impliedly recognised the conflict.
Statutes: Enduring Powers of Attorney Act 1985 8(3), The Incapacitated Principal (Law Commission No.122 (1983) Cmd 8977)
This case cites:
- Cited – Yaxley -v- Gotts and Another CA (Gazette 14-Jul-99, Times 08-Jul-99, Bailii, [1999] EWCA Civ 1680, [1999] 1 WLR 1217, [2000] Ch 162, [1999] EGCS 92, Bailii, [1999] EWCA Civ 3006, [2000] 1 All ER 711)
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . . - Cited – Re W (Enduring Power of Attorney) ([2000] 1 All ER 175, [2002] MHLR 411, [2000] Ch 343, [2000] 3 WLR 45)
The law allows those with capacity to take treatment decisions which on any objective view are reasonable. A power of an attorney to make gifts of the donor’s property is extremely limited and without the authorisation of the court does not extend . . - Cited – Goldsworthy -v- Brickell CA ([1987] Ch 378, [1987] 2 WLR 133)
The plaintiff had granted a tenancy of his substantial farm to the first defendant, and made him a partner. The first defendant later bought out the plaintiff who was in turn later reconciled with his only son who had previously had some . .
(This list may be incomplete)
This case is cited by:
- Cited – In re F (Enduring power of Attorney) ChD (Times 29-Apr-04)
Mrs F had given an enduring power to her son, but then became incapable and the power was registered. Her daughter had in the meantime applied to be appointed as her receiver. There was particular bitterness between the brother and sister. F called . . - Cited – In re J (Enduring Power of Attorney) ChD (Bailii, [2009] EWHC 436 (Ch))
(Court of Protection) The donor executed a document purporting to appoint his wife to be his attorney, with an alternative. The document was based on a published precedent. The Public Guardian (PG) thought this provision of an alternative invalid. . .
(This list may be incomplete)
Last Update: 13-Jun-16
Ref: 162987