The High Court has rejected objections to registering an enduring power of attorney made by a woman for her two daughters, finding she had capacity when she signed it in November 2020 and that the legal formalities were met.
Mr Justice David Barniville directed that the instrument be registered under the Powers of Attorney Act 1996. The application was brought by the two daughters appointed as attorneys; their brother PK objected, with support from some siblings. The parties’ identities and places were anonymised because of the donor’s serious medical condition.
PK argued that his mother’s dementia and eyesight problems meant she lacked capacity when she signed. He also questioned whether she had signed the document in her solicitor’s office, alleged that it might have been tampered with, and raised concerns about the attorneys’ suitability, a possible conflict involving one daughter’s role as an executor under the donor’s will, and alleged undue pressure. He also argued that changes in legislation meant the EPA was no longer needed.
The judge accepted evidence from the donor’s solicitor, who said she advised the donor and witnessed her sign the EPA on 27 November 2020, and from the donor’s doctor, who said the donor had capacity at that time. The doctor said the donor had not started dementia medication and that her visual impairment did not affect her capacity. The judge noted there was no medical evidence contradicting the doctor’s evidence and that she had not been cross-examined.
The judge found that the donor’s later dementia and declining capacity did not establish that she lacked capacity in 2020. He rejected the claims of tampering, undue pressure and unsuitability, and said the alleged conflict connected to the will did not disqualify the daughter from acting as attorney. He also found that the required notices and other statutory formalities had been met.
One attorney’s signature on the EPA was not dated. The judge accepted evidence that she signed on 29 December 2020 and ruled the missing date immaterial. He said he would also register the instrument under an alternative statutory provision if the omission were material.
The court’s decision concerns registration of the EPA; it did not resolve the wider family disagreements about the donor’s care. The judgment encouraged the siblings to consider mediation. The judge said final orders would be made on a later date to be notified to the parties.