Attorney (England and Wales)
Encyclopedia
The use of the term Attorney under English law
differs from that of most other English-speaking countries, and terms such as 'Power of Attorney
' thus have different meanings as well. Correspondingly, some composite terms such as Attorney-at-law are no longer used at all. A particular feature of English usage (and indeed UK usage) is that the attorney need not be a lawyer, and appointment as an attorney does not confer any legal qualification. The purpose of this article is thus to make clear the meanings of key terms in the context of England and Wales.
A power of attorney, without elaboration of this basic term, is created when one person (the donor) gives to another (the attorney) a defined right to deal with some aspect of the donor's personal decision-making powers: for example, to give the right to draw funds from the donor's bank account in order to meet necessary payments while the donor is abroad or in hospital. There is no standard form, and in an example such as this the bank would have its own procedures which both parties would be expected to observe. A key feature is that the attorney is under a duty of trust, in the above case to use the funds in the interests of the donor and not his own. Any such arrangement would end automatically on the death of the donor, or if the donor became unable to assert his or her rights under the agreement because of a loss of mental capacity
.
A Lasting Power of Attorney
(LPA) extends the basic Power of Attorney in two ways: it is structured to allow for a more extensive range of powers to be conveyed, under clear rules subject to legal control; and as the title indicates the powers which are granted to the attorneys may, if the legal document is properly drafted and registered, continue after the time when the donor no longer has the capacity
to make the required decisions.
There are two kinds of lasting power of attorney
, covering respectively Property and Financial Affairs, and Health and Welfare. They were set up under an Act of the UK Parliament, the Mental Capacity Act 2005
, and came into effect on 1 October 2007. They replaced the former Enduring Power of Attorney
EPA); an EPA signed before that date may still be used, but must be registered if the donor has lost capacity
. For further details see the articles on the LPA
and EPA
, noting that no new EPA can now be created.
courts. In 1873, however, attorneys were redesignated solicitor
s (which had always been the title for those lawyers who practised in the courts of equity). Attorneys did not generally actually appear as advocates in the higher courts, a role reserved (as it still usually is) for barrister
s.
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
differs from that of most other English-speaking countries, and terms such as 'Power of Attorney
Power of attorney
A power of attorney or letter of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter...
' thus have different meanings as well. Correspondingly, some composite terms such as Attorney-at-law are no longer used at all. A particular feature of English usage (and indeed UK usage) is that the attorney need not be a lawyer, and appointment as an attorney does not confer any legal qualification. The purpose of this article is thus to make clear the meanings of key terms in the context of England and Wales.
The different kinds of attorney
The word attorney itself means, under English law with no other word attached, someone (or in some circumstances an organisation such as a company) who is legally appointed or empowered to act for another person. The procedure for appointment as an attorney depends on the rights and conditions attached to the appointment. (The reason for the 'no other word attached' requirement is that the term 'Attorney General' is the title given to the chief legal officer of the UK government.)A power of attorney, without elaboration of this basic term, is created when one person (the donor) gives to another (the attorney) a defined right to deal with some aspect of the donor's personal decision-making powers: for example, to give the right to draw funds from the donor's bank account in order to meet necessary payments while the donor is abroad or in hospital. There is no standard form, and in an example such as this the bank would have its own procedures which both parties would be expected to observe. A key feature is that the attorney is under a duty of trust, in the above case to use the funds in the interests of the donor and not his own. Any such arrangement would end automatically on the death of the donor, or if the donor became unable to assert his or her rights under the agreement because of a loss of mental capacity
Capacity (law)
The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...
.
A Lasting Power of Attorney
Lasting Power of Attorney
Lasting powers of attorney in England and Wales were created under the Mental Capacity Act 2005 of which copies are available online, and came into effect on 1 October 2007. The LPA replaced the former Enduring Powers of Attorney which were narrower in scope...
(LPA) extends the basic Power of Attorney in two ways: it is structured to allow for a more extensive range of powers to be conveyed, under clear rules subject to legal control; and as the title indicates the powers which are granted to the attorneys may, if the legal document is properly drafted and registered, continue after the time when the donor no longer has the capacity
Capacity (law)
The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...
to make the required decisions.
There are two kinds of lasting power of attorney
Lasting Power of Attorney
Lasting powers of attorney in England and Wales were created under the Mental Capacity Act 2005 of which copies are available online, and came into effect on 1 October 2007. The LPA replaced the former Enduring Powers of Attorney which were narrower in scope...
, covering respectively Property and Financial Affairs, and Health and Welfare. They were set up under an Act of the UK Parliament, the Mental Capacity Act 2005
Mental Capacity Act 2005
The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves....
, and came into effect on 1 October 2007. They replaced the former Enduring Power of Attorney
Enduring power of attorney
An enduring power of attorney under English law is the legal authorization to act on someone else's behalf in a legal or business matter. From 1 October 2007 the EPA has been replaced by the two forms of lasting power of attorney , and no new EPAs can now be drawn up; however, one signed before...
EPA); an EPA signed before that date may still be used, but must be registered if the donor has lost capacity
Capacity (law)
The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...
. For further details see the articles on the LPA
Lasting Power of Attorney
Lasting powers of attorney in England and Wales were created under the Mental Capacity Act 2005 of which copies are available online, and came into effect on 1 October 2007. The LPA replaced the former Enduring Powers of Attorney which were narrower in scope...
and EPA
Enduring power of attorney
An enduring power of attorney under English law is the legal authorization to act on someone else's behalf in a legal or business matter. From 1 October 2007 the EPA has been replaced by the two forms of lasting power of attorney , and no new EPAs can now be drawn up; however, one signed before...
, noting that no new EPA can now be created.
Historical usage
The term "attorney-at-law" or "attorney" was historically used in England and Wales for lawyers who practised in the common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
courts. In 1873, however, attorneys were redesignated solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
s (which had always been the title for those lawyers who practised in the courts of equity). Attorneys did not generally actually appear as advocates in the higher courts, a role reserved (as it still usually is) for barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s.