Cretney and Lush on Lasting and Enduring Powers of Attorney (7th Edition): Senior Judge Denzil Lush (Jordans, 2014, £67.50)
This work is now in its seventh edition. It is rightly regarded as the bible in this area, so this review therefore will be relatively short. Suffice it to say that, written by Senior Judge Denzil Lush, it comes with the stamp of authority of a judge who (I think it can properly be said) knows more about LPAs and EPAs than any other judge sitting today. The book is also particularly useful because SJ Lush has a very strong sense of the history underlying the current regime. Notwithstanding the fact that the Court of Appeal has recently (in a slightly different context) sought to emphasise again that the starting point in relation in mental capacity issues is the plain text of the Act itself, a sense of the history underpinning some of the provisions in the Act and Rules is necessary in order to understand how powers of attorney are supposed to work. Therefore, whilst some might say that the sections of the work dealing with the past should themselves be consigned to history, I for one would urge them to be retained.
A very useful addition to this edition is an analysis and discussion of the position in relation to private international law questions. The exact status of foreign powers of attorney under the law of England and Wales (set out in Schedule 3 to the MCA 2005) is a matter of no little complexity. In his chapter on this, SJ Lush details the precise position as clearly as it can be, and in my respectful submission entirely correctly. In particular, he makes the important point that the foreign power of attorney is not a measure of protection (to use the language of Schedule 3, reflecting in turn that of the 2000 Hague Convention on the International Protection of Adults). This means that the attorney cannot, for instance, invoke the summary procedure provided for in respect of such measures of protection to obtain recognition and enforcement of the power. The chapter stands as a powerful reminder of why the United Kingdom should ratify the 2000 Convention in respect of England and Wales (in addition to Scotland, already a ‘Convention country’) so that use can be made of the procedure envisaged under Article 38 of the Convention (and paragraph 30 of Schedule 3, not yet in force) for certificates to be issued confirming the powers under which an attorney acts.
Many of those reading this review will already have this edition parked neatly on their bookshelves; I would recommend that those who do not and who practice or advise in this area remedy that situation forthwith.
Full disclosure: I am very grateful to Jordans for providing me with a copy of this for purposes of this (unpaid) review