Judge: Chancery Division (Nugee J)
Citation:  EWHC 2960 (Ch)
This is the reported decision of Nugee J in relation to an appeal from a decision of Senior Judge Lush. There was a short note in relation to this decision in the July 2015 Newsletter and the Senior Judge’s decision at  EWCOP 40.
The donors of the LPAs in question had wanted to achieve the result that they appointed joint deputies but on the death or inability to continue of one, the survivor was reappointed to act alone. The LPAs were not happily drafted and the Senior Judge held in any event that the current regime precluded such an appointment and severed those parts of the LPAs that attempted to provide for survivorship.
The donors appealed and Nugee J held that there was nothing in the MCA that prevented a donor, as had been attempted here, from appointing A and B jointly or jointly in respect of some matters and severally in respect of others providing that on the death or inability of one, the survivor should be reappointed under section 10(8) (b) MCA, see paragraphs 20 and 21 of the judgment.
At paragraph 24, Nugee J set out a form of words that would achieve that result and provide for a replacement when both A and B could not act. In the result, the court allowed the appeal and the registration of the powers with some unnecessary and confusing words being excised.
At paragraph 41, Nugee J stated that a difficulty would arise if the replacement attorney is simply described by his office (eg senior partner in X firm of solicitors). In relation to an appointment made there and then it would be possible for that person to be identified and complete the appropriate parts of the form, but that is not so in relation to a replacement attorney as who might be in that office at the time when the replacement takes effect is not known when the LPA is made.