§ [References are to [Bill 93] as first printed for the Commons.]
§
Clause 3, page 4, line 12, at end insert—
("(2A) Subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may (without obtaining any consent) execute or exercise all or any of the trusts, powers or discretions vested in the donor as trustee and may (without the concurrence of any other person) give a valid receipt for capital or other money paid.").
§ The Lord ChancellorMy Lords, I beg to move that the House do agree with the Commons in their amendment. Perhaps it might be convenient if I pointed out that the print of the Bill which is before the House contains a misprint, although one not directly relevant to the amendment. In Clause 1(1)(c), the 549 "donor's authority" should read, the "donee's authority". I understand that this was put before your Lordships in a correct form and I am advised that therefore no action by either House is required.
I come now to the amendment. It has been necessitated by a decision of the High Court that an attorney may only exercise the functions and powers of a trustee if such functions and powers are delegated to him by a power of attorney made under Section 25 of the Trustee Act 1925. However, Clause 2(8) of the Bill provides that a Section 25 power cannot be an enduring power, in the main because the operation of such a power is limited in time to a maximum of 12 months; whereas mental incapacity is commonly likely to last somewhat longer than 12 months.
The result of this decision, together with Clause 2(8) of the Bill, is that an attorney under an enduring power cannot dispose of any of the donor's property held on trust. Most married couples nowadays hold the matrimonial home upon a trust for sale, so that the inability of the attorney under an enduring power to dispose of trust property would have widespread effect and reduce the efficacy of the scheme contained in the Bill. This amendment seeks to remedy this defect. I think I can fairly describe it as a rather technical amendment. I beg to move.
§ Moved, That the House do agree with the Commons in the said amendment.—(The Lord Chancellor.)
§ Lord Elwyn-JonesMy Lords, it would seem to be highly desirable that the attorney should have the power mentioned, and I agree.
§ The Lord ChancellorMy Lords, I am much obliged to the noble and learned Lord for his help.
§ On Question, Motion agreed to.