Holly Mieville-Hawkins gives the heads up on changes to lasting power of attorney laws The OPG is going to explore how the roles of certificate provider and witness may be merged, without undermining the critical safeguards provided by the role(s). The concept of a power of attorney is not a new one. Powers of attorney …
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Wills & Trusts Law Reports | Summer 2022 #187The parties were children of Concetta Chandler, who had died on 24 January 2019. C was her son and executor. D was her daughter.
On 4 June 2018, Mrs Chandler had transferred her house into the joint names of herself and D as tenants in common in equal shares. C sought a declaration that the transfer was void and rectification of the land register to reflect this.
From 2005 (when it was purchased) until the transfer, the house had been held in Mrs Chandler’s sole name.
On 28 November 2018, D had registered with the Office of the Public Guardian a lasting power of atto...
Peter Walker examines whether the case of Chandler v Lombardi advances our understanding on what gifts an attorney can make under an LPA If any gifts do not fully comply with the conditions and have not been specifically approved by the Court of Protection, then they are void as opposed to voidable, and therefore recoverable …
Continue reading "Lasting powers of attorney: The scope of gifts"
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Francesca Gardner looks at the first case to be reported from the Court of Protection on whether a power should be registered when the attorneys are at odds The court was clear in its assessment that KC’s daughters, as a result of the acrimony between them, would not be able to effectively consult one another …
Continue reading "Lasting powers of attorney: Engaging override"
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Wills & Trusts Law Reports | Winter 2019 #177In 15 separate applications under s23(1) Mental Capacity Act 2005 (MCA), the Public Guardian (PG) asked the court to determine the effect of language used in lasting powers of attorney which he was asked to register. Some were withdrawn, leaving 11. The common theme was that each instrument expressed an intention that the attorney use the donor ‘s assets to benefit someone other than the donor.
PS: Under the heading ‘Preferences ‘, the donor entered the words ‘The needs of [LS] before anyone else ‘. Under the heading ‘Instructions ‘, she entered the words ...
Wills & Trusts Law Reports | Spring 2019 #174The Public Guardian filed a number of applications under s23 and schedule 1, para 11 of the Mental Capacity Act 2005 (the 2005 Act) in two test cases seeking the court’s guidance as to whether or not it was appropriate to register, with or without amendments, instruments purporting to create a lasting power of attorney (LPA).
In the first series of cases the applications concerned provisions in LPAs for personal welfare which contemplated euthanasia or assisted suicide by the attorneys. In some cases, the provisions were expressed in mandatory terms which appeare...
David Rees QC and Joseph Rich examine a case that highlights common problems with lasting powers of attorney ‘If the court determines that an LPA contains a provision which would be ineffective, it must either sever the provision or direct the Public Guardian not to register the instrument.’ The Public Guardian v DA; BP [2018] …
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How does the court approve retrospective payments to attorneys who have exceeded their powers? Geoffrey Kertesz and Helen Fry discuss ‘The case is an emphatic reminder of the need to choose an attorney with the ability (and inclination) to engage fully with their duties.’ The Court of Protection in Re HH [2018] has returned to …
Continue reading "Lasting powers of attorney: When lay means laissez faire"
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Wills & Trusts Law Reports | Summer 2018 #172The claimant, who was born in 1934, left all financial matters to her husband until his
death in 2005. He had made ample provision for her, with an annual income of
about £100,000. She lived in a large house, in Northumberland, which for
inheritance tax planning reasons she transferred to her son, the defendant, in 2006.
As she continued to live in the house, to comply with the reservation of benefit rules she paid her son a monthly rent of £2,500. The claimant’s health began to deteriorate in 2011, subsequently suffering a stroke which left her with hemiplegia. By 2013,
as a conseq...
Wills & Trusts Law Reports | Winter 2018 #170The court was asked to consider the applications, made on behalf of 36 incapacitated persons, to appoint a trust corporation as their property and affairs deputy. There was currently no agreed system through which the court could know that any particular trust corporation was suitable to be appointed as deputy, nor a ‘panel’ of approved trust corporations.
The following questions arose:
- A. Could a trust corporation lawfully act as a deputy?
- B. How could a trust corporation satisfy the court that it was appropriate for it to act as deputy?
- C. How shou...
