Mental Capacity Bill

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Mr. Boswell: Listening to the hon. Gentleman, I was powerfully reminded of the old chestnut of the person who confided to his friend that he was confused about a certain matter and was advised by his friend to attend a conference to learn more about it. He went to the conference and was then debriefed by his friend; he reported that he was still confused, but at a somewhat higher level. In a sense, that is both the situation in which the hon. Gentleman finds himself and the situation in which the Committee needs to find itself in order to seek clarification on these matters.

I have a general point to make about our approach this morning. The hon. Gentleman's intentions and objectives are impeccable: they are to reveal points of concern about the operation of the detailed provisions for specific cases in which mental capacity is lost, as opposed to the general principles and the general authority—as it used to be called—which we have discussed exhaustively. In addition, he wants to ensure that the safeguards are watertight and unforeseen circumstances do not arise. I have no intention of speaking generally to the hon. Gentleman's amendments and I will understand should he choose to follow suit in respect of mine. This morning's amendments are all in the same ballpark, being designed to get assurances from the Minister about

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how the provision will work. There is a slight element of relief, because these matters are not quite of the day-to-day intensity of the ones that we have already discussed and to which we will return.

Before I discuss the amendments, I would like to flag up two points. The first is that the Minister might find it helpful to consider, and to start commissioning at an early stage, explanatory material with a view to laypersons who may become donees of powers of attorney. It should set the matter out as far as possible in a clear and simple way—the Plain English Campaign could be enlisted and algorithms, diagrams and so on could be used. Even we might find understanding the difference between a donee, a deputy, an independent consultee, a Lord Chancellor's visitor and all the rest, confusing. It is important that people who are not dealing with this all the time—and, dare I say, some who are—be steered through the process.

The second point, which I touch on briefly in relation to the point of order made by the hon. Member for Knowsley, North and Sefton, East (Mr. Howarth), is that there are, of course, continuing issues. You ruled rightly on that, Mr. Hurst; we cannot go back to them. However, I hope that those who have already taken an interest in the Bill's progress through this Committee, and the Joint Committee before it, will feel able to contact Committee members to inform us before we start Report stage. There is a lot to get right and the Committee's common intention is to do so.

I share the concern of the hon. Member for Sutton and Cheam (Mr. Burstow) that this matter should be carefully articulated. From his remarks, I will pick out two points that concern me. The first is that there is an awkward overlap; legislation that has been in place for nearly 20 years in the shape of enduring powers of attorney is to be repealed, then re-enacted; alongside it, in parallel, the Bill introduces the regime of lasting powers of attorney. We must be certain that the concepts that are to be extinguished then reactivated are as far as possible the same as the LPA powers.

Mr. Burstow indicated assent.

Mr. Boswell: I see the hon. Gentleman nod. I have tabled amendments that address the fact that although the concept of mental incapacity was banished from the Bill after the work of the Joint Committee, it has now suddenly reappeared in the schedules in relation to enduring powers of attorney. I understand that the reasons for that might be legal, but it is the kind of mismatch that may prove difficult to resolve.

In relation to the amendments currently being discussed, there is an issue about the status of powers under an enduring power of attorney compared with powers under a lasting power of attorney. Because the latter are conferred by later legislation and are ''more current'' will they in any sense trump the powers that already exist? The hon. Gentleman pointed out that LPAs introduce for the first time the power to have an attorney explicitly for matters of health and welfare, whereas the EPAs relate to matters of property and affairs.

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Mr. Burstow: I am listening carefully to the hon. Gentleman and an additional thought occurs to me. Someone may already have an enduring power of attorney in respect of financial matters but now, with the benefit of this legislation, they might choose to keep that in place and also have lasting powers of attorney in respect of welfare and other matters. A concern then arises, which I want the Minister to address: will there be parity of esteem in terms of consultation with those individuals?

Mr. Boswell: The hon. Gentleman anticipates my expression of the thought that I had when listening to his speech. Is there any difference in quality between the two? Would one prevail over the other, and in what circumstances might it do so?

Someone who is considering their affairs might already have prudently taken out an enduring power of attorney for financial matters, because he is the kind of person who likes to cover himself —he always has a will and all the other things that all of us should have, but many of us, sadly, fail to have. Such a person might say, ''I need to bring things up to date. Do I need to have a whole new shooting match even if the same person is involved, or can I build on my EPA by adding an LPA to it—and if so, would it make a difference to the authority of the donee if she was the same person operating in one case under the old terms and in the second case under the new legislation?'' Those are significant issues.

I do not quite see eye to eye with the hon. Gentleman with regard to his attempts to articulate a distinction between financial powers and health and welfare powers, which the Bill now provides for, and to suggest that the powers in one should not automatically steer decisions in the other. I understand the motive behind that, but there will be circumstances in which there could be issues that go wider than simply the financial or simply welfare. They might interact in relation to the provision of care relating to where somebody is to live. For example, if the individual were to live in the community with a support package, the financial attorney could reasonably say, ''Well, I have to pay for this, so I have an interest in it.'' Conversely, when a financial attorney is considering someone's affairs, the welfare attorney might say, ''Well, I have an interest in how you dispose of this—in whether you are investing for income or capital growth or whatever—and I demand to be consulted.''

I may have overlooked something but, although I know that we all want such conflicts to be resolvable, it is not clear to me how that would be achieved. I suspect that such conflicts would ultimately have to go to the Court of Protection to be resolved—just as conflicts might do if they were specifically about financial or health matters as separate issues. These are not matters of huge concern, but if we do not get them right, some people will be puzzled in future. For example, professionals acting in good faith might give misleading advice to individuals who want to secure their position, or to persons acting as attorneys. There might be a degree of avoidable confusion, and any confusion needs to be kept to a minimum.

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The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): The important point to make on this amendment is that the lasting power of attorney is made when the person has capacity. That is an important distinction. It was unfortunate that I had to intervene on Second Reading to ensure that people understood that appointing a deputy, which we will deal with later, is an entirely different matter in which the court has imposed a third party. Any of us in this Room, as we sit here and ponder our future life—whether on matters of finance, health or welfare—can appoint an attorney, and we do so when we have capacity. Most of us, in those circumstances, would appoint a loved one—a partner or a perhaps a sibling.

It is also important in discussing enduring powers of attorney to bear it in mind that people are doing this now. Some people make such powers because they want someone—perhaps a sibling—to deal with their financial arrangements while they are abroad. I have known constituents who have emigrated to France, or who spend nine or 10 months there—generally well-off people, although there are not that many in Tottenham—and appointed someone with enduring power of attorney to deal with their financial arrangements. It is important to emphasise that the enduring power of attorney regarding financial matters, and the lasting power of attorney, can be appointed when someone has capacity. The health and welfare context becomes relevant when someone with capacity loses it. It is important to make that distinction.

The amendment would avoid any doubt about the scope of an attorney's decision-making power. It seeks to make it clear that a person appointed to make those personal welfare decisions cannot make them about property and affairs, or vice versa, and their views should not take precedence over those of others involved in a decision that is outside the scope of their powers.

It might be helpful if I explain why the Bill already deals with the concerns of the amendment. Although clause 9(1) provides that a lasting power of attorney can confer authority on the attorney to make decisions about the personal welfare, property and affairs of a person who lacks capacity, it is clear that such a power may be limited to personal welfare, property and affairs, or specified matters. It is for the person who has capacity to limit, in whatever way, the lasting power of attorney that they are setting up.

The clause says that a lasting power of attorney can confer the authority to make decisions about any of or all these matters. ''Any'' indicates either personal welfare, property and affairs, or specified matters only, and ''all'' clearly means personal welfare, property and affairs. There will be a range of LPAs, depending on the desire of the person who has capacity and is making the decision.

In relation to the views of others, there is clearly no question as to one view taking precedence over another. In determining best interests, the views of

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others are to be taken into account, but there is no requirement that one should be given more weight than another.

10 am

In that respect, it is important that we understand the obligations to consult, which are fundamental to an LPA. That takes us back to our discussions on best interests. When we talked about best interests having relevance to the entirety of the Bill, except in regard to advance decisions, we said that under clause 4(6) there is a duty to consult. Under clause 4(6)(c), there is a requirement to ensure that there is no precedence in decision making, but there is a requirement to consult.

 
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