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Attorney able to act as Personal Representative to apply for Grant of Letters of Administration.
In the recent case of Whittaker v Hancock & Ors [2018] EWHC 3478 (Ch), the High Court held that an Attorney acting under a Lasting Power of Attorney for Property and Financial Affairs (“LPA”) could be appointed under Section 50 Administration of Justice Act 1985 (“Section 50”) as a substitute Personal Representative (“PR”) in place of the donor who lacked capacity and was the deceased's wife.
The judge found that it was a general LPA in sufficiently wide terms, without any conditions or restrictions, to allow the Attorney to decide about the donor's property and financial affairs. The donor was the sole beneficiary of the Will and therefore had an interest in the estate which was covered by the definition of "property and financial affairs". The Attorney could therefore act in a representative capacity to bring an application under Section 50 either as Attorney for the donor as the sole beneficiary of the Will or as Attorney for the donor who was a joint PR. Alternatively, the donor could have been added as a Claimant and the Attorney could have been appointed as her litigation friend.
In addition, under Rule 35(2)(b) of the Non-Contentious Probate Rules 1987 (“NCPR”), where a person entitled to a grant lacks capacity and no person is authorised by the Court of Protection to apply for a grant, the district judge or registrar can issue a grant to the Attorney acting under a registered LPA. This authority can be limited in certain circumstances in line with Rule 31 of the NCPR if necessary.
The judge agreed that the Attorney could be the PR in place of the donor in order to apply for a Grant of Letters of Administration with the Will annexed.
This is an interesting case which highlights the wide-reaching powers of an LPA and the need to think very carefully about who to appoint as your Attorneys as they could potentially be able to make decisions which significantly affect you.
To discuss any of the issues raised above, please contact a member of the Private Client team on 01384 410410.