Has anyone recently tested whether the wording proposed in Miles v OPG (below) to reappoint a sole surviving joint attorney is accepted by OPG? I’ve heard practitioners suggest appointing attorneys jointly and then name the same attorneys as replacement attorneys on joint/several basis. OPG won’t comment on best practice.
Is the wording accepted? If so, is it best in instructions and/or continuation page?
If wording is not accepted, then should the same attorneys/replacement attorneys sign 2 sets of section 11 (i.e. one as attorney and one as replacement attorney)?
In the event that 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 that appointment leaving only one remaining original attorney capable of acting then I expressly reappoint that attorney to act alone.
You cannot appoint an original attorney to act as a replacement attorney but you can reappoint them to act solely. or jointly with another and the accepted wording I have used before is below:
“My attorneys should act jointly in all decisions. In the event that one of my 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 that appointment then I expressly reappoint the remaining attorney to act alone”
If you have original attorneys with replacements you can use the following wording:
"In the event that my original attorney 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 that appointment my replacement attorneys shall step in to act jointly
In the event that one of my replacement attorneys becomes unable to act due to the occurrence of an event as set out in section 13(6)(a)to(d)of the Mental Capacity Act 2005 which has the effect of terminating that appointment then my remaining two replacement attorneys shall continue to act jointly
In the event that two of my replacement attorneys become unable to act due to the occurrence of an event as set out in section 13(6)(a)to(d)of the Mental Capacity Act 2005 which has the effect of terminating that appointment leaving only one remaining replacement attorney capable of acting then I expressly reappoint that attorney to act alone"