In the case of Public Guardian v Miles and others [2014] EWCOP40, the Court of Protection has ruled that it is not effective to appoint attorneys jointly, until one or more die, and include a provision re-appointing the survivors.
Attorneys appointed jointly and severally
The Court was ruling on an attempt to get round the problem that arises when someone appoints attorneys jointly, rather than attorneys appointed jointly and severally.
If the attorneys are appointed jointly, they must make all decisions together and when one of them dies, the Court will not simply allow the surviving attorneys to act (because they do not know whether the person giving the power would have intended for the survivors to make decisions without the one that has died). The whole instrument becomes invalid.
As such, where for example a parent wants to appoint two or more of their children to act jointly in decisions, for example, over the sale of the family home, they can either appoint attorneys on a joint and several basis, meaning that any one of the children could act to sell the property without necessarily having to involve the other attorneys in this decision, or they can appoint the attorneys on a joint basis. This means that all attorneys must act together, but there is a risk that should one of the attorneys die, the whole of Power of Attorney becomes ineffective.
Public Guardian v Miles and others
The Judge in this case made a proposal to get round this problem which was to create two separate Powers of Attorney. The first appointing attorneys to act jointly, and the second appointing the attorneys to act jointly and severally with the condition that the second Power of Attorney only comes into effect if, and when, the first Power of Attorney fails for any reason.
This proposal, though offering a potentially helpful workaround, was a general comment made by the Judge and has yet to be properly tested in the Court. Furthermore, the condition that would need to be included in the Power of Attorney would need to be carefully worded and it may not be possible to know whether the wording used would be effective until an actual case is considered by the Court. The practical application of the arrangement could also cause problems. Banks and other financial institutions sometimes raise unnecessary queries and prevent the use of Powers of Attorney even when they are set up in the simplest way.
Comment
As a practitioner preparing Powers of Attorney on a day to day basis, the case and the decision serves to highlight the difficulties that can arise when trying to put conditions and restrictions on what your attorneys can do under the Power of Attorney and the lack of flexibility in an arrangement where attorneys are appointed on a joint, rather than joint and several, basis.
In my view, if you trust your attorneys you should give them as much flexibility as you can so that they can make the best decision in all of the circumstances.
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