Craig Ward’s 500-page commentary on lasting powers of attorney (LPAs) updates the text to take account of developments in the safeguarding of adults and the emerging use of LPAs in a business context.
Beginning with a useful summary of the law relating to powers of attorney generally, Ward situates LPAs against that background. The precursor to the LPA – the enduring power of attorney – is perhaps what non-specialists will be more familiar with. This is described by Ward as a mechanism whereby ‘a donor [can] appoint an attorney to act on his behalf and in his name and that authority [can] survive the donor’s supervening lack of mental capacity’. LPAs, introduced in October 2007, are similar, but registrable and intended to be more flexible. There are now two types: one version to govern property and financial affairs, and a second to govern health and welfare. Either or both can be used.
Author: Craig Ward
£59.95, Law Society
Of recent significance is the development of business LPAs (BLPAs). Concerns around discrimination have long meant that replacing or removing company directors on the grounds of mental health impairment is extremely sensitive. The BLPA appears to be providing a useful intermediate need – giving the individual the ability to appoint an attorney specifically to manage their business interests in the event of incapacity. Given the ongoing nature of this responsibility, it is not immediately clear how this fits into the statutory regime relating to, for example, directors’ duties under the Companies Act 2006. Ward’s position is that, as the BLPA is created and governed under the Mental Capacity Act 2005, company law will not apply. One speculates that this perhaps remains to be tested, and Ward acknowledges a ‘degree of discord’.
Sections on capacity and its assessment are helpful in contextualising the discussion. Checklists on acting in a donor’s ‘best interests’ and taking instructions are properly aimed at the practitioner. Interaction between the attorney and other decision-makers receives a chapter to itself; caution no doubt being required at this site of overlapping input.
It might be an editorial choice but the heavy sub-division of the text makes it a rather uneven read. As a reference work, however, the many sub-headings, lists of cases and legislative instruments (and an extensive index) make the work easily navigable.
Tom Garbett is a solicitor