Power of Attorney: All you need to know: granting, it, using it or relying on it (Sandra McDonald, Souvenir Press, 2021, paperback/Kindle: £10.99)
In this book, the former Public Guardian for Scotland, Sandra McDonald, brings a huge weight of expertise to bear in the lightest touch way possible upon almost all issues that might be relevant for those thinking about granting/making a power of attorney, being an attorney, or working with an attorney. Drawing, in part, upon her own experiences as attorney for her father, she seeks (as she puts it in the introduction) to empower people to make and use powers of attorney as effective instruments. In this, I would suggest she succeeds magnificently.
The book is avowedly not a legal textbook, but rather a practical guide. Nonetheless, it does a masterful job of bringing the law home – including a particularly elegant chapter 7 on (in effect) implementing the UN Convention on the Rights of Persons with Disabilities as an attorney through supporting decision-making and respecting the person’s rights, will and preferences. Even if a pedant might quibble as to whether attorneys are, in fact, bound by the UNCRPD, this chapter represents a model of how the sometimes rather abstract discussions about the right to legal capacity in Article 12 CRPD can be brought down to earth in practical, grounded, and principled fashion.
One very striking – and important – feature of the book is that it is not limited to one of the three different jurisdictions within the UK, but rather seeks to cover Scotland, England & Wales and the (future) regime in Northern Ireland. This has several advantages, not least because it allows for commonalities in approach to be identified underneath differences in language (I particularly appreciated the way in which the differences between the English concept of ‘best interests’ and the Scottish concept of ‘benefit’ are dismissed as, ultimately irrelevant “as long as you place the individual at the centre of your consideration, when acting under either law.”).
Seeking to cover all three regimes in one book does, however, mean that there are a few bits where this English lawyer twitched for fear that a reader in England & Wales might be led astray, and which I’ll list here so that in the next edition – as I hope this book will be regularly updated given its value – they can be addressed. The first is that, sadly, there is no prospect in England & Wales that you could get legal aid to assist in making an LPA, as this is specifically excluded by the relevant legislation. The second is even if (which I have to say I find challenging as a concept) you could empower your attorney in Scotland to authorise the deprivation of your liberty, you definitely cannot in England & Wales. The third is that an attorney cannot instruct an IMCA, as is suggested might be possible as one way of resolving a dispute: only an NHS body or a local authority can instruct an IMCA – an attorney could potentially instruct (if this was within the scope of their powers) someone who was independent and was an advocate, but this would not be an IMCA. The fourth is that, whilst the book makes clear that it is giving only a very light touch discussion of advance decisions, it is important to emphasise that in England & Wales the ‘sequencing’ of advance decisions to refuse treatment and the making of LPAs governing medical decision-making has to be got right so as not to get into real difficulties.
Lastly, and whilst this book follows the Code of Practice to the MCA in suggesting that the test for capacity is a two stage test starting with a diagnostic element, it is clear from subsequent case-law that, at least in England and Wales, the test starts with asking whether the person is able to make their own decision. Only if they cannot does consideration progress further. An ironic feature of this book is that it reinforces why the test should be approached in this fashion (over and above the fact that the MCA provides this): if they follow the advice set down here, which does not focus on the impairment, but on the ability of the person, attorneys should find themselves more often in the zone of supporting the person to make their own decisions than stepping into their shoes.
As the book makes clear, it is not intended to be a legal textbook, and provides at the back all the resources that could be hoped for to direct those who are going to be actually making / granting and using powers of attorney in the different jurisdictions. So the points of detail noted above do not detract materially from the importance or utility of this book, nor the achievement of bringing so much wisdom home to bear in 328 pages without a single footnote!
[Full disclosure, I was provided with a copy of this book by the publishers. I am always happy to review books in the field of mental capacity and mental health law (broadly defined).]