Book Review: “Lasting Powers of Attorney: A Practical Guide”

Lasting Powers of Attorney: A Practical Guide (Craig Ward, Law Society Publishing, 2016, paperback £59.95)

This is the third edition of a work which does precisely what it says on the cover, setting out in very considerable (one might almost say exhaustive) almost all conceivable matters relating to the creation, operation, and control of powers of attorney.  It is particularly helpful in its focus on the bigger picture of powers of attorney, as can be seen in three examples.

The first is the examination of the law and good practice relating to the instruction of a solicitor to prepare an LPA, which raises distinct (albeit related) issues to that involved in the creation of an LPA itself.  Importantly, the author does not stop at questions of capacity, but goes on to look at the issues of potential vulnerability and undue influence covered in the recent Law Society Practice Note, Meeting the Needs of Vulnerable Clients.

The second is the very clear and helpful discussion of how LPAs interact with advanced decisions to refuse treatment, which is an area which can really trip people up.

The third and final example is to be found in appendix in which the author draws on empirical research that he has conducted into why the court is so reluctant to grant health and welfare deputyships.  The results of that study emphasise the importance of establishing (wherever possible) a power of attorney for health and welfare matters in advance of incapacity.

The author also has a particular interest in how LPAs can be used by those in business to secure their interests in periods of incapacity.  The operation of LPAs in this context raises complex questions given the numerous duties imposed on directors and others by company law.  The book provides a surefooted guide to those seeking to set up and make use of powers of attorney in this area.

Given the exhaustive nature of the book, it is a (small) shame that the author does not take the opportunity, even in an appendix, to consider how LPAs may fit into the context of the CRPD and the requirement under Article 12 that states take measures to secure the effective exercise of legal capacity by everyone on an equal basis.  On one view such powers are very much in line with the CRPD, but, as discussed in the recent EAP Three Jurisdictions Report, the way in which they are currently provided for under English law does make for some interesting tensions (see §6.3 of the report).  And on a very minor technical note, I would say that (picking up paragraph 1.6.2 of the book), it is in fact clear that the provisions of Schedule 3 relating to certificates are not in force in England and Wales, see the decision of the President in Re PO).

But these are very minor niggles, and overall the book makes essential reading for anyone (and in particular any solicitor) concerned with these powerful tools.

[Full disclosure: I am grateful to the publishers for providing me with a copy of this book. I am always happy to review works in or related to the field of mental capacity (broadly defined)]


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