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Attorney’s power to make gifts - the limits of a Lasting Power of Attorney

The recent judgment in Chandler v Lombardi [2022] EWHC 22 (Ch) highlights the limits of an attorney’s authority to make gifts under a Lasting Power of Attorney (‘LPA’).

The Facts

Mrs Concetta Chandler lived in Birmingham and had four children. In 2005, she purchased 34 Mallaby Close, Shirley, Solihull, B90 2PW (‘the Property’) for £154,000 in her sole name. She had a will, dated 18 August 1993, which left her estate to her four children in equal shares.

Mrs Chandler appointed her daughter, Ms Janet Lombardi, as her attorney for both health and welfare, and for property and financial. The LPAs were registered on 25 and 28 November 2016 respectively. The certificate provider for both LPAs was Mrs Chandler’s GP.

Ms Lombardi’s brother, Mr Anthony Chandler, was on holiday at the time that the LPAs were entered into and was not aware of their existence.

Purporting to rely upon the LPA for property and affairs, on 4 June 2018, Ms Lombardi transferred the property from her mother’s sole name to her and her mother’s joint names, as tenants in common. That led to a claim by Mrs Chandler’s son (Ms Lombardi’s brother), Mr Anthony Chandler, on the grounds that Ms Lombardi did not have authority to make that transfer.

Proceedings

The claim was brought by Mr Chandler, acting as his mother’s litigation friend on 25 October 2018. Following this, Mrs Chandler sadly died on 24 January 2019 and Mr Chandler was subsequently substituted as applicant in proceedings, having been made executor of his mother’s estate.

Mr Chandler was seeking a declaration that the transfer of the property into Ms Lombardi and Mrs Chandler’s joint names as tenants in common was void, such that the Land Registry title should be rectified pursuant to Schedule 4 of the Land Registration Act 2002.

There were two key matters for the Court to determine on Mr Chandler’s application:-

  • Firstly, whether Ms Lombardi had power or authority, as Mrs Chandler's attorney, to transfer the Property into the joint names of Mrs Chandler and Janet Lombardi, as tenants in common in equal shares, on 4 June 2018.
  • Secondly, if Ms Lombardi did not have such power or authority, then whether the transfer of 4 June 2018 was void such that the registration of the transfer in the Land Register was a mistake which requires correction pursuant to paragraph 2(1)(a) of Schedule 4 to the Land Registration Act 2002 (alternatively, it was voidable such that the Land Register should be altered so as to bring it up to date pursuant to paragraph 2(1)(b) of Schedule 4 to the 2002 Act).

Outcome

The authority conferred upon Ms Lombardi to make gift in respect of Mrs Chandler’s property and affairs, governed by the provisions of section 12 of the Mental Capacity Act 2005 (‘MCA’). 

Section 12(1) permits an attorney to make gift to the extent permitted under section 12(2). This includes on “customary occasions” to persons (including to the attorney) who are related to or connected with the donor. “Customary occasions” are defined under section 12(3) to include birthdays, marriages, civil partnerships or any other occasions at which presents are customarily given.

However, the Court held that the transfer of the property did not fall within one of these scenarios. 

In these circumstances, an application should be made to the Court of Protection for an order permitting such a gift, pursuant to section 23(4), under which the court may authorise the making of gifts which are not within the section 12(2) “permitted gifts”. Ms Lombardi had not made such an application and it was held to be no defence that she was unaware of this requirement. Furthermore, it was observed that when entering into the LPA, Ms Lombardi signed the acknowledgement stating, "By signing this section I understand and confirm the following…I have a duty to act based on the principles of the Mental Capacity Act 2005 and have regard to the Mental Capacity Act Code of Practice".

Ms Lombardi therefore did not have the authority to transfer the property.

Turning to the second issue for determination, the Court recognised that the title register can only be rectified pursuant to a void, and not merely voidable, disposition. The Court found the transaction to be void, so rectification of the Land Register was ordered pursuant to paragraph 2(1)(a) of Schedule 4 to the Land Registration Act 2002 to put the property back into the sole name of Mrs Chandler for the purposes of dealing with the estate.

Comment

The authority given to an attorney under a LPA is expressly limited under section 12 MCA. A gift can be permitted that is not within the section 12(2) “permitted gifts” authority, but an application for prior approval of such a gift must be made to the Court of Protection to authorise such a transaction, failing which, the gift will be void.

You can read the full judgment here.

For more information on this article, please contact Katie Webber or Will Romain.

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