The risk of abuse of the lasting power of attorney : a comparative analysis of the system in Malta and in England and Wales

Abstract

Powers of attorney vest legal authority in a trusted person (the ‘attorney’) to make decisions on behalf of another (the ‘mandator’). The lasting power of attorney’s (hereinafter ‘LPA’) peculiarity arises from the fact that it remains operative notwithstanding the loss of mental capacity of the mandator. This instrument provides the mandator with a choice over the person who will make decisions on his behalf or help in his decision-making and over the type of decisions that person may make. The Mental Capacity Act 2005 (hereinafter ‘MCA’) introduced the LPA in England and Wales, whereas in 2016 the Maltese Civil Code was amended to include the LPA under Article 1864A. Owing to their nature and effect, LPAs can be ‘significant potential vehicles of abuse, particularly financial abuse’. The victims of such abuse are vulnerable adults, generally the elderly or persons with a disability. Although the use of LPAs encourages autonomy over one’s life, it places the mandator at a risk of abuse since the attorney can take advantage of his position of trust. Therefore, as will be explored, the use of LPAs necessitates special care and adequate legal safeguards against abuse. The research methods considered to be most adequate for this report are the black-letter methodology and the comparative approach. The professional report revolves around Article 1864A of the Maltese Civil Code and Articles 9 -14 of the English MCA which deals with the LPA. The comparison will bring to the fore any similarities and dissimilarities between the two LPA models. The ‘functional method’ is the comparative method adopted as the research focuses on a prevalent problem arising from the LPA in the two jurisdictions, that is the risk of abuse of LPAs and compares and contrasts the solutions offered by each legal system.5 A mix of primary sources and secondary sources were employed for the write up of this report. Primary sources used include relevant legislation, parliamentary debates and caselaw whereas secondary sources consulted include journal articles, books and theses examining LPAs. Case-law on LPAs from the English courts is especially relevant for the English legal system which follows the doctrine of precedent. To date, no case-law specifically dealing with Article 1864A has arisen in the Maltese Courts. Considering the concept of LPAs has only formed part of the Maltese legal system for the last five years, it is hoped that in the near future the Maltese courts will have an opportunity to provide more insight into the use of LPAs. The aim of this report is to determine the extent to which both legal systems provide solutions to mitigate the risk of abuse of LPAs. This is done in order to ultimately present recommendations to improve the two LPA frameworks. The report will first explore the legislative framework regulating LPAs in England and Wales and in Malta (Section 2). It will then proceed to further define the problem, that is the risk of abuse, and analyze how the two legal systems tackle this issue (Section 3). Lastly, any recommendations will be provided in the conclusion (Section 4).