How your attorney may be able to deal with more than just your own affairs


Posted by Olivia Shenton-Taylor, 1st March 2019
When granting someone a power of attorney you are giving them the right to deal with your own affairs.  However the recent case of Whittaker v Hancock and others [2018] shows that in certain circumstances where you lose capacity your attorney may also be able to substitute you and act as a personal representative for someone else’s estate.

Background

The case concerned the estate of John Parker.  John’s will appointed his niece, Christine, and his wife, Margaret, as joint executors.  John left his whole estate to Margaret and expressly excluded his daughter from a previous marriage, Linda, on the basis that she was financially independent and the father-daughter relationship had broken down.

In 2013, Margaret left the family home to move in with her own daughter, Janet, who was better placed to care for her.  At this point she still had capacity and Margaret appointed Janet as her attorney by way of a lasting power of attorney (“LPA”) which gave Janet the right to deal with Margaret’s property and financial affairs.

In 2016, John died and Christine applied for probate. Before probate was granted, however, the deceased’s daughter, Linda, entered what is known as a ‘caveat’ which prevented the grant of probate being sealed and meant the estate administration could not continue.  Despite entering a caveat Linda never progressed matters and a claim under the Inheritance (Provision for Family and Dependants) Act 1975 was never brought.

Christine wished to continue acting in the administration of the estate, but due to financial reasons was not prepared to take legal action to remove the caveat. This impasse led Janet to bring a claim that she be appointed as substitute personal representative in place of her mother under section 50 of the Administration of Justice Act 1985 and that the caveat entered by Linda be removed.

The issue to be decided

The issue before the court was whether Janet should be substituted for her mother, who no longer had capacity to act as executrix.

Linda argued that Janet had no standing to bring the claim. The LPA, she said, should be read restrictively as giving Janet limited powers to manage Margaret’s own property and financial affairs only and that it should not extend to John’s property and financial affairs.

Janet’s case was that Margaret’s interest in the estate as sole beneficiary fell within the meaning of her own property and financial affairs and it was therefore Janet’s duty as attorney to act on Margaret’s behalf and join in the administration of the estate.

The outcome

The court concluded that a general LPA dealing with property and financial affairs, which contains no conditions or restrictions (such as that granted by Margaret) should not be read restrictively and Janet therefore had standing to bring her claim to be appointed as a substitute personal representative. Given that Margaret was the sole beneficiary, it was necessary to appoint Janet to act as personal representative of the deceased in place of Margaret.  The caveat was ordered to be removed.

Lessons to take away

This case shows that an LPA drafted in wide terms will enable an attorney to not only deal with the donor’s own property and financial affairs, but to also act in a representative capacity in certain circumstances.

Whilst this might only apply in situations where the original personal representative is also the sole beneficiary of the estate, it is a further point to consider when appointing an attorney or acting as an attorney.

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