J, Re (Enduring Power of Attorney)

Ms Nicole Sandells (instructed by Moody and Woolley) for the Applicant Mr David Rees (instructed by The Public Guardian) for the Respondent Hearing date: 5th March 2009 ____________________

i) An enduring power of attorney is a sub-species of powers of attorney generally (Schedule 4 para. 1). Thus it must comply with the formalities necessary to create a power of attorney. It follows from this that, unless qualified by a restriction in the instrument itself, an enduring power of attorney will take effect immediately.

ii) An enduring power of attorney must comply with additional formalities. These include a requirement that the instrument must be in a prescribed form; and that it must be executed not only by the donor of the power but also by the attorney (Schedule 4 para. 2).

iii) If an instrument appoints more than one person to be an attorney it must state whether they are appointed to act jointly, or jointly and severally (Schedule 4 para. 20).

iv) An enduring power of attorney may contain conditions or restrictions which limit the authority conferred on the attorney by the power (Schedule 4 para. 3).