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Enduring Powers of Attorney Act 1985

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This is the original version (as it was originally enacted).

9Protection of attorney and third persons where power invalid or revoked

(1)Subsections (2) and (3) below apply where an instrument which did not create a valid power of attorney has been registered under section 6 (whether or not the registration has been cancelled at the time of the act or transaction in question).

(2)An attorney who acts in pursuance of the power shall not incur any liability (either to the donor or to any other person) by reason of the non-existence of the power unless at the time of acting he knows—

(a)that the instrument did not create a valid enduring power; or

(b)that an event has occurred which, if the instrument had created a valid enduring power, would have had the effect of revoking the power; or

(c)that, if the instrument had created a valid enduring power, the power would have expired before that time.

(3)Any transaction between the attorney and another person shall, in favour of that person, be as valid as if the power had then been in existence, unless at the time of the transaction that person has knowledge of any of the matters mentioned in subsection (2) above.

(4)Where the interest of a purchaser depends on whether a transaction between the attorney and another person was valid by virtue of subsection (3) above, it shall be conclusively presumed in favour of the purchaser that the transaction was valid if—

(a)the transaction between that person and the attorney was completed within twelve months of the date on which the instrument was registered; or

(b)that person makes a statutory declaration, before or within three months after the completion of the purchase, that he had no reason at the time of the transaction to doubt that the attorney had authority to dispose of the property which was the subject of the transaction.

(5)For the purposes of section 5 of the Powers of Attorney Act 1971 (protection of attorney and third persons where action is taken under the power of attorney in ignorance of its having been revoked) in its application to an enduring power the revocation of which by the donor is by virtue of section 7(1)(a) above invalid unless and until confirmed by the court under section 8(3) above, knowledge of the confirmation of the revocation is, but knowledge of the unconfirmed revocation is not, knowledge of the revocation of the power.

(6)Schedule 2 shall have effect to confer protection in cases where the instrument failed to create a valid enduring power and the power has been revoked by the donor's mental incapacity.

(7)In this section "purchaser" and "purchase" have the meanings specified in section 205(1) of the Law of Property Act 1925.

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