We have assumed that the power of attorney in question is a lasting power of attorney (LPA). For guidance on revoking and disclaiming appointments under LPAs, see Practice Note: LPAs—revocation and disclaimer. As explained in this Practice Note, section 13(2) of the Mental Capacity Act 2005 (MCA 2005) states that a donor may revoke their LPA at any time when they have capacity to do so. For guidance on capacity to revoke an LPA, see Practice Note: Capacity to create or revoke an LPA. A power of

The Trustee Act 1925 (TA 1925) makes provision for appointments and retirements of trustees but it may be expressly excluded (TA 1925, s 69). Therefore, in every case of appointments and retirements of trustees, the trust instrument in question should be checked to see if there are any specific provisions. TA 1925, s 36 states (our emphasis): ‘36 Power of appointing new or additional trustees (1) Where a trustee, either original or substituted, and whether appointed by a court or otherwise, is dead, or remains out of the United Kingdom for more than twelve months, or desires to be discharged from all or any of the trusts or

Although a traditional contract of apprenticeship is not a contract of service, it is a contract of employment under section 230 of the Employment Rights Act 1996 (ERA 1996) which means that for the purposes of any employment claims arising under ERA 1996, an apprentice who enters into such a contract will be an employee. An apprenticeship agreement, provided it meets the requirements under the Apprenticeships, Skills, Children and Learning Act 2009 (ASCLA 2009), is to be treated as a contract of employment, and not a contract of apprenticeship. For further information, see Practice Note: Apprenticeships. A lay-off would involve the temporary suspension of the contract, ie the employer would not provide any work for

A freezing injunction (formerly known as a mareva injunction) is an interim injunction which restrains the defendant from either removing his assets from the jurisdiction (ie England and Wales) or from dealing with them if they are not in the jurisdiction (known as a worldwide freezing injunction). All types of assets can be frozen, including bank accounts. A freezing injunction is therefore a powerful tool to prevent a defendant from dissipating assets that may form part of any arbitral award. The answer to whether a tribunal

For the purposes of this Q and A, it is assumed that the arbitration is ad hoc and seated in England and Wales. To the extent that there is an arbitration agreement in place, it is important to review it carefully and determine whether or not it makes any express provisions regarding the arbitrator’s remedial powers. As discussed further below, it is also crucial to check whether or not the arbitration agreement excludes the arbitrator from considering the proposed section 423 Insolvency Act 1986 (IA 1986) claim. Note: if the arbitration is to be conducted pursuant to any arbitral rules (eg the LCIA Rules 2014) then do consider what those rules provide in relation to the arbitrator’s powers. Arbitrator remedial powers under English and Welsh law Pursuant to section 48(1) of the Arbitration Act 1996 (AA 1996), the parties to an arbitration are free to agree on the arbitrator’s remedial powers. These powers do not have to be limited

The determination of liabilities arising under a commercial tenancy will depend upon whether the tenancy was created before or after 1 January 1996. Under the Landlord and Tenant (Covenants) Act 1995 (LT(C)A 1995), tenancies entered into before this date are considered to be ‘old tenancies’ and those created on or after are considered to be ‘new tenancies’. Old tenancies Where the lease is an old tenancy, the original tenant remains liable for the tenant covenants throughout the term of the lease, even if it has assigned its interest. However, an assignee of an old tenancy is liable for those tenant covenants that touch and concern the land for as long as the lease remains vested in the assignee. The assignee's liability is usually extended by

When the Housing Act 1988 (HA 1988) originally came into force, an assured shorthold tenancy (AST) was required to have a term of at least six months (HA 1988, s 20). Following the introduction of the Housing Act 1996, HA 1988, s 19A was inserted which removed the requirement for a minimum term and also permitted a periodic tenancy from the outset. As a consequence, from February 1997 onwards, there has been no minimum length of time that an AST is required to last for, and a landlord is free to enter into

A tenancy let as a dwelling other than by a local authority or certain types of social landlord and which is occupied by the tenant as his only or principal home will in most cases be assured under section 1 of the Housing Act 1988 (HA 1988). To this rule there are exceptions contained in HA 1988, Sch 1. These cover a number of situations, in particular the terms of the tenancy (in particular the rent) or the nature of the tenant (lettings to students by the institution they are attending, being excluded, for example, from the protection). Subject to quite limited exceptions, an assured tenancy entered into after 28 February 1997 will be an assured shorthold tenancy (AST). The exceptions are to be found in HA 1988, Sch 2A, one of the most common examples of which being where the landlord serves notice on the tenant before the parties enter into the tenancy which states that it will not be an AST. The benefit to the landlord of the tenancy

Attorneys of a health and welfare LPA have their powers limited by section 11 of the Mental Capacity Act 2005. In particular, a health and welfare LPA can only be used if the donor lacks, or the attorney reasonably believes he lacks, capacity. A professional assessment of

This Q&A assumes that the Lasting Power of Attorney (LPA) is registered and the donor lacks mental capacity. The powers granted to an attorney are limited and this appears to be a proposal to create a new personal injury trust. It is considered that an application would be needed under Court of Protection for an order under section 23(4)

The provisions regarding lasting powers of attorney (LPAs) are set out in sections 9 to 14 of the Mental Capacity Act 2005 (MCA 2005) and MCA 2005, Sch 1. The question concerns a Property and Affairs LPA under MCA 2005, s 9(1). Chapter 7 of the MCA 2005 Code of Practice summarises the duties of the donee and, at paragraph 7.36, lists the matters they usually undertake such as operating bank accounts and paying bills. MCA 2005, s 9(4) provides that the authority conferred

Once registered with the Office of the Public Guardian (see Practice Note: LPAs—registration procedure), a lasting power of attorney (LPA) for property and financial affairs may be used, even if the donor still has mental capacity, unless the LPA contains a restriction stating that the attorney may only act under the LPA if the donor lacks capacity. Assuming that the LPA has been registered and does not contain any such restriction, the question is whether the scope of the authority of an attorney under an LPAfor property and financial affairs extends to conducting divorce and financial remedy proceedings on behalf of the donor. The general rule is that, if a donor does not restrict the decisions the attorney can make, the attorney will be able to make decisions regarding any or all of the