Attorney Control Absolute, Rules Judge

When someone is appointed under a power of attorney, their obligations can be onerous enough without the person who appointed them (the donor) trying to impose restrictions on their ability to undertake certain acts.

So, when attorneys appointed (with joint and several responsibility) under an Enduring Power of Attorney (EPA) to manage the assets of a vulnerable person under the Mental Capacity Act 2005 found that the document appointing them sought to limit their ability to dispose of a property, a court hearing was necessary to determine the limits of their authority.

The donor had included in the EPA a restriction that a property which was part of the assets under the control of the attorneys could not be disposed of by them without the agreement of the donor’s children.

The court was unwilling to accept that the attorneys’ powers should be restrained as directed by the donor. The right of an attorney to manage the assets for which they are responsible cannot be fettered in such a way.

If a donor wishes to impose such limitations on the actions of those they have chosen to manage assets for them, a trust could provide a suitable vehicle for doing so.

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