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Cretney & Lush on Lasting and Enduring Powers of Attorney

FROM £75.00

The leading work on this difficult and developing area of law.

/system/uploads/attachments/0008/2685/Lasting_Powers.mp3Listen to Denzil Lush discussing recent developments in the 7th edition of Cretney & Lush on Lasting and Enduring Powers of Attorney.


Cretney & Lush on Lasting and Enduring Powers of Attorney is the leading work on this difficult and developing area of law.

 The 7th edition has been significantly updated and expanded and includes:

 • Examination of developing case-law under MCA 2005 and LPA regs
 • Extended practical guidance on executing and registering LPAs
 • New guidance on fees and costs
 • New chapter on recognition and enforcement of foreign orders
 • New precedents section

Uniquely, this work provides full guidance on both enduring and lasting powers of attorney. It looks in detail at Lasting Powers of Attorney and the law and procedure relating to their creation and registration, and examines the duties and responsibilities that will remain in relation to existing Enduring Powers of Attorney.

Cretney & Lush on Lasting and Enduring Powers of Attorney contains all relevant legislation, prescribed forms and commentary from a leading expert in the field.

Who is the guide targeted to?
 Private client, personal injury, clinical negligence and family barristers and solicitors; financial advisors and social services
Part I Lasting Powers of Attorney – the History of Enduring and Lasting Powers of Attorney; Differences between Enduring Powers of Attorney and Lasting Powers of Attorney; Capacity to Create a Lasting Power of Attorney; Attorneys; Named Persons; Certificate Providers; Execution of a Lasting Power of Attorney; Application to register a Lasting Power of Attorney; Objections to registration; Functions of the Public Guardian; Functions of the Court of Protection; Fees and Costs; Scope of the Attorney’s Authority; Termination of Lasting Power of Attorney; The Code of Practice

Part II Enduring Power of Attorney – Granting an Enduring Power of Attorney; Action Required at Onset of Mental Incapacity; The Authority and Power of an Attorney under an Enduring Power of Attorney; The Court of Protection and Enduring Power of Attorney; Revocation, Disclaimer and Termination of Enduring Powers; Appointment of more than One Attorney; Protection of Third Parties; Recognition and enforcement of foreign orders

Part III Common Provisions - The code of practice; Private international law

Appendices – Statutes; Statutory Instruments; Lasting Power of Attorney Forms; Enduring Power of Attorney Forms; Court Forms; Guidance; Case Reports; Precedents
"For practitioners having to deal with the often monumental complexities of this especially sensitive area of law, this book, particularly in its new edition, is indispensable."
An appreciation by Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers
 To hear the full review click here
 To read the full review click here

"The chapter on precedents is a godsend...I for one will keep the book not too far from my desk at all times...This book is well written and easy to read. It is clear, concise and an absolute 'must have' for anyone working or studying in this area of law."
Karon Walton
              Solicitor, Tollers Solicitors, Director of Solicitors for the Elderly


"rightly regarded as the bible in this area...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."
 
Mental Capacity Law and Policy
To read the full review click here

"impressive and erudite book...a comprehensive guide for the practitioner who needs to be confident of their position and the advice they give to their client."
Aileen Barry
STEP  Journal
 
To read the full review click here 

"The seventh edition of this book is a must have for the Private Client Practitioner...an excellent book which will appeal to both the specialist and non-specialist private client solicitor giving full guidance on this developing area of the law."
Gail Frankland Law Skills
To read the full review click here

REVIEWS OF PREVIOUS EDITIONS

"clear and detailed guidance to the law and procedure in this area ... easy to read commentary not only highlights the potential dangers but also how to avoid them ... Topical issues of significance are helpfully and comprehensively addressed by an eminent specialist in this field ... a valuable resource to practitioners"
ACTAPS Newsletter

"certainly be useful ... clear explanation of creation, process and dealing with problems"

SFE Newsletter

"the author expertise is legendary ... has been greeted with enthusiasm by private client solicitors ... excellent ... the book remains succinct and, above all, practical throughout... comprehensive in its coverage and suitable for both non-specialist practitioners dealing with powers of attorney for the first time, and for experienced lawyers who need to clarify more intricate points ... it is hard to imagine a more thorough and complete guide than this work"

STEP Journal

"The real value of the book is in the detailed comments and clear explanations about specific technical areas ... such clear information is invaluable to a busy practitioner ... if I was to choose just one book on LPAs, this would be it"

The Law Society Probate Section Magazine

"A detailed, lucid and well-written guide ... remarkably user friendly ... could not be bettered"

Civil Justice Quarterly

"Comprehensive and well set out ... extremely useful"
Solicitors Journal

"There is a clear need for a guide to this expanding area of law and it is hard to imagine a team better qualified to write one than the authors of this book ... authoritative ... concisely and clearly written"

The Law Teacher

FURTHER GUIDANCE ON ASSESSING CAPACITY
3.31 Further guidance for persons assessing whether a person has capacity can be found in the MCA 2005 Code of Practice, and in particular at chapters:
  • 2: What are the statutory principles and how should they be applied?
  • 3: How should people be helped to make their own decisions?
  • 4: How does the Act define a person’s capacity to make a decision and how should capacity be assessed?
3.32 The Office of the Public Guardian produces two booklets for LPA donors: LPA111, Guidance for people who want to make a lasting power of attorney for health and welfare, and LPA112, Guidance for people who want to make a lasting power of attorney for property and financial affairs. Chapter 4 of each booklet provides fairly detailed guidance to certificate providers, which is reproduced at 7.58 below.

THE CRITERIA IN RE K, RE F AND LPAS
3.33 The statutory definition of capacity in s 2(1) of the MCA 2005 is prefaced by the words ‘for the purposes of this Act’. Accordingly, it does not affect the existing common law definitions of capacity, such as those for making a will (Banks v Goodfellow (1870) LR 5 QB 549), or for revoking a will (Re Sabatini (1970) 114 SJ 35), or for making a substantial lifetime gift (Re Beaney(Deceased) [1978] 2 All ER 595).

3.34 The MCA 2005 Code of Practice suggests, at para 4.33, that:
 ‘The Act’s new definition of capacity is in line with the existing common law tests,
 and the Act does not replace them. When cases come before the court on the above
 issues, judges can adopt the new definition if they think it appropriate.’

3.35 The capacity required to create an EPA was considered in Re K, Re F(Enduring Power of Attorney) [1988] 2 FLR 15, in which Hoffmann J gave, at p 20, the following summary of the matters which should ordinarily be explained to the donor, and which the evidence should show that he had understood:
 ‘First (if such be the terms of the power), that the attorney will be able to assume
 complete authority over the donor’s affairs. Secondly (if such be the terms of the
 power), that the attorney will in general be able to do anything with the donor’s
 property which he himself could have done. Thirdly that the authority will
 continue if the donor should be or become mentally incapable. Fourthly, that if he
 should be or become mentally incapable, the power will be irrevocable without
 confirmation by the court.’

3.36 It is submitted that the criteria in Re K, Re F are not applicable to LPAs because of the fairly major differences between EPAs and LPAs, and would need to be adapted in several respects. For example:
  • The donor would need to understand that the LPA cannot be used until it
     is registered by the Public Guardian.
  • One would expect to see a change of emphasis between the creation of an LPA for health and welfare and an LPA for property and financial affairs; and, in particular, the donor would need to understand that the attorney under an LPA for health and welfare can only make decisions that the donor is contemporaneously incapable of making for himself (MCA 2005, s 11(7)(a)).
  • Unlike an EPA, the donor can revoke an LPA at any time when he has capacity to do so (MCA 2005, s 13(2)), without the court having to confirm the revocation.
  • The authority conferred by an LPA, unlike an EPA, is subject to the provisions of the MCA 2005 and, in particular, s 1 (the principles) and s 4 (best interests) (MCA 2005, s 9(4)).
  • The statutory definition of capacity specifically requires the donor to be aware of the foreseeable consequences of not executing an LPA (MCA 2005, s 3(4)), whereas Hoffmann J did not include an understanding of the effect of not making an EPA in his summary of the matters which should ordinarily be explained to the donor.

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