An original joint attorney reappointed with a replacement attorney?

Trusts Discussion
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Apologies if this has been discussed elsewhere.

I have a client who wants to appoint A & B to act jointly, with a replacement attorney [C] but if either of A or B stops acting would like the remaining attorney to be reappointed with C jointly so he still has 2 joint attorneys.

Re Miles [2014] EWCOP 40 established that an original joint attorney could be reappointed as a sole attorney.

The court also said “… it does seem to me that it is right that the Act should be construed in a way which gives as much flexibility to donors to set out how they wish their affairs to be dealt with as possible, the Act being intended to give autonomy to those who are in a position where they can foresee that they may in the future lack capacity to specify who it is that they wish to act for their affairs…"

I would be interested to learn if anyone has prepared an LPA on the above basis or have any view as to whether it would be possible?

The wording I would use in the instructions section is:

"In the event that one of my original attorneys shall be unable to act due to the occurrence of an event set out in section 13(6)(a) to (d) of the Mental Capacity Act 2005 which has the effect of terminating the appointment, I expressly re-appoint the remaining of my original attorneys [a] or [b] as the case may be, as a replacement attorney to act jointly with my other replacement attorney [c]. "

Any thoughts please?

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On first blush, you wouldn’t think there would be a problem and what you are suggesting seems perfectly sensible.

However, the OPG can be a funny bunch. I submitted powers of attorneys for two different clients with the exact same wording as to order of replacement of attorneys. They registered in one case and refused in the other. In the latter they claimed that the wording would inevitably lead to a replacement replacing a replacement. Their interpretation was plainly flawed, but after a 12 month of argument, my client agreed to a severance by the COP.

I would suggest that you contact the OPG and ask for their guidance as to the form of wording. Unfortunately, as I am sure you are aware, they are not terribly responsive at the moment!

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