Review of Cretney and Lush on Lasting and Enduring Powers of Attorney
Cretney and Lush on Lasting and Enduring Powers of Attorney
Denzil Lush and Caroline Bielanska
It is doubtful whether the launch of a law book has ever generated such a commotion in Scotland as the comments by retired senior judge Denzil Lush on the BBC Radio 4 Today programme on 15 August 2017, heralding the publication of the eighth edition of this book, of which he has been one of the authors from the outset. It is certain that such consternation can never have been caused here by the launch of a textbook for England & Wales only. However, the concerns seem to have been mainly on the part of Scottish solicitors, several of whom sought guidance from the Law Society of Scotland or the Public Guardian about how best to respond to clients’ concerns.
Senior judge Lush’s comments seem largely to have flown over the heads of the public at large, except perhaps to the entirely helpful extent of a general warning that things can go wrong under a power of attorney, it is an important document and great care should be taken over its preparation, and those who seek to do so without appropriate professional advice do so at their own risk. Anyone with continuing concerns should actually read the foreword by Lush and the counterbalancing preface by his co-author Caroline Bielanska. And if one goes beyond those introductory comments, it becomes immediately evident that together they have produced a masterly, well structured and helpfully detailed account of the current law of lasting and enduring powers of attorney in England & Wales.
The initial controversy has naturally focused attention on differences north and south of the border, which are substantial, and interest in a comparative approach. Even without controversy, that is what a Scottish reviewer of a book for England & Wales will tend to do anyway. The differences are substantial, and many aspects are more complex than here, but one should not criticise the messenger for the content of the message!
References to lasting powers of attorney and enduring powers of attorney relate to successive regimes. Many powers of attorney of both types are currently in force, or still waiting to be brought into force. The book starts with a helpful account of the history of both, and then an explanation of the differences, before proceeding with a detailed account of both types, in each case examining capacity to create, who may be the attorney or attorneys, role of named persons, certification and execution, application to register and objections thereto, the functions of the Public Guardian and the Court of Protection, fees and costs, the scope of the attorney’s authority, revocation, disclaimer and termination. Further chapters cover protection of third parties, the code of practice and finally private international law. That last chapter criticises the uncertainties about the status of powers of attorney cross-border within the United Kingdom, and the entire text of the book (as opposed to the lengthy appendices occupying about one half of the total) concludes with a quotation from the FAQs pages on the website of our Public Guardian, the question being “Can a Scottish power of attorney (PoA) be used in England?” and narrating the unsatisfactory position, describing it as unacceptable, and pointing out that: “The matter rests with England to agree and make any changes that are required”.
One notable difference, of some relevance to the controversy, is the difference in certification procedures. The procedures in England & Wales are immensely complex, including a wide range of potential certifiers and a list (ill publicised, as this book points out) of disqualifications. The simpler and more robust requirements in Scotland are surely preferable. Perhaps even they do not go far enough, compared with regimes elsewhere under which certification, and even in some cases preparation, of powers of attorney is limited to notaries public or solicitors.
Errors and grounds for criticism are few. Surprisingly, the fifth general principle in s 1(6) of the Mental Capacity Act 2005 is in para 3.11 misquoted as two sentences rather than one. It might have been appropriate for the authors to discuss Council of Europe Recommendation (2009)11 on principles concerning powers of attorney and advance directives for incapacity, and also the alteration published by the Permanent Bureau to the Hague Convention (albeit only very shortly before apparent finalisation of this book) to the paragraph of the Explanatory Memorandum to Hague Convention 35 on the International Protection of Adults relevant to the cross-border status of powers of attorney. The change is significant. It is now accepted that powers of attorney may qualify as “measures of protection”, and thus for automatic recognition and enforceability between states which have ratified Hague 35.
It is perhaps rather odd that the discussion of historical development refers to United States and Australia, but not Scotland; and the concluding comments quoted above could perhaps have been balanced with reference to the decision in C, Applicant (Airdrie Sheriff Court, 2 April 2013, unreported but widely referred to) that an English enduring power of attorney has automatic recognition in Scotland.
Adrian D Ward