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Mr. Boswell: I am grateful to the Minister for his reply, although I am somewhat disappointed by it, and I have not say that many times in this Committee. There may be niceties of law that I cannot fully bottom, and no one in the Committee would seek to overturn the whole law of agency just for the purpose of the amendment, but I would like the Minister to take my proposal away and reflect on it. I say that because I had in mind situations that were not necessarily abusive and in which a degree of flexibility might be appropriate.
Let me start, however, with situations that are abusive. As the Minister rightly said, the court has powers to control such situations and ultimately to withdraw the power of attorney. That is entirely proper, and we are not arguing about that. However, it would be something of the nature of a nuclear deterrent that could take away any power in the hands of the attorney. The Minister needs to reflect on the fact—indeed, he has already reminded the Committee of this—that many appointees will be in family relationship and will have a close affinity with the person. They may therefore feel mortified if they are withdrawn from that position, particularly if they feel that the circumstances are not in their control.
That brings me to the non-abusive case. In drafting my amendment, I did not intend—and my amendment does not imply—that it would not be open to the attorney to seek a degree of modification in their powers from the Court of Protection. The amendment could work in several ways, although I stress again that it is not simply about the abusive case, for which there are powers. A relation or close friend could, for example, give someone powers under an LPA to rule on health and welfare or financial affairs. The donee of those powers might then embrace a particular faith, becoming, for example, a Christian Scientist and adopting particular views about the nature of the treatments that might be acceptable. That might put them in an invidious position—or others might feel that it does—in relation to the discharge of the health and welfare provision under their lasting power of attorney. At the same time, however, they might be perfectly capable of discharging their financial responsibilities.
Mr. Lammy: Does the hon. Gentleman not think that the objective requirement to act as the reasonable man on the Clapham omnibus, which is contained in clause 4(8)—the best interests clause—mitigates the circumstance that he describes?
Mr. Boswell: The Minister is right that it mitigates such a circumstance, but it does not remove it. One can imagine someone being given the power of attorney by a close friend, but then embracing a new faith and realising that they were now in a difficult position in
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respect of health and welfare decisions, because they were reluctant to take or commission such decisions. They might, however, be deeply committed to the person's welfare and perfectly well able to discharge the financial and property obligations of a power of attorney.
All I am saying is that the way in which the Bill is constructed—legal principles may make it impossible to divert from that—states that one has either to absolutely comply with the power of attorney as it was at the time, or to withdraw it and, if necessary, reappoint the person as a court deputy. That may be the only answer. I think that the Minister is nodding at that point, but I would like him to reflect on it.
I am asking him to consider—I will not press the point—whether in certain circumstances, most of which we cannot foresee, there might be a case for saying that rather than tear up the LPA, or the EPA created under previous legislation, it might be more sensible to keep it going but modify it in some way. The circumstances might relate to abuse. More typically, the desire for modification might be consensual. The donee of the power of attorney might make an application for modification, enabling them and the donee to work in a way with which they felt more comfortable, rather than enter what the Minister has described as the state system, whereby the court has to stand in. I do not want to press the Minister to a final conclusion, but he might want to reflect on that issue.
The Chairman: Is the hon. Gentleman withdrawing the amendment, or does he wish to press it?
Mr. Boswell: If the Minister were prepared to consider the issue further, I would withdraw it.
Mr. Lammy: The hon. Gentleman has made his points forcefully and well, and I am willing to consider the amendment.
Mr. Boswell: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.
Question agreed to.
Clause 9 ordered to stand part of the Bill.
Schedule 1
Lasting powers of attorney: formalities
Mr. Boswell: I beg to move amendment No. 70, in
schedule 1, page 35, line 3, at end insert
'(or has had it read to him)'.
I shall be even briefer. This amendment is certainly less important, but it has one or two implications for those of us who are interested in disability issues.
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The eagle-eyed who have penetrated as far as the schedules, and—save the thought—have actually read them, will notice that there is an asymmetry in the requirements as to the content of instruments. They include a statement by the donor to the effect that he has read the prescribed information or a prescribed part of it, or has had it read to him, and intends to confer authority under the instrument that will include the authority to make decisions on his behalf.
The provision in the schedule that I seek to amend relates to the donee and prescribes that, as a condition, the donee should have read the prescribed information or a prescribed part of it. The Minister will know that if an exception is made in a particular case and not repeated in a second one, the legal inference to be drawn from that is that the provision omitted in the second case would not be a sufficient discharge of the obligation.
I know why the provision was so drafted, as the donor, who would have had mental capacity at the time, so we are not talking about someone who lacks capacity, might well have had some pre-existing disability of a physical nature, such as a sight impairment in particular, which made it difficult for them to read the document. Of the large number of people with visual impairments—about 1.8 million in this country—only a small proportion are Braille readers, as is the Home Secretary, as it happens. Many people might be happy for their solicitor, or whoever had drawn up the instrument, to read it out to them. That might be sensible and the least intrusive way of proceeding.
Such a provision is made for donors, which is sensible, but I cannot for the life of me see why we cannot extend a similar provision to donees. Omitting it excludes that possibility. It is perfectly reasonable for someone who is visually impaired to be given the power of attorney for a friend; it just happens that the person cannot read the documents, but he can have them read to him. Starting from the base point, the document—the instrument under which the power of attorney is conveyed—is provided for the donor to read through. That is regarded as good enough, so it seems odd not to provide it to the donee so that it can be read to him.
As the Minister knows, there are many other safeguards in the schedule. There has to be a certificate saying that the donor understands the purpose of the instruments and that there is no ''fraud or undue pressure'', and so on. The whole procedure is rather watertight. It is odd that we cannot be more flexible in respect of this matter.
Mr. Lammy: The hon. Gentleman's amendment aims to ensure that, if potential attorneys are unable to read the prescribed information, it can and should be read to them. Given that we have provided that that should be the case for donors, I am inclined to consider the amendment so that the same opportunities are extended to attorneys who, for whatever reason—he has set some out—are unable to read the prescribed
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information. I shall speak to parliamentary counsel about the proposal to see whether we can correct the provision.
Mr. Boswell: In light of that assurance and the fact that good news—I hope—is on the way, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Boswell: I beg to move amendment No. 71, in
schedule 1, page 35, line 12, leave out 'and' and insert—
'(iia) there is no significant actual or potential conflict between the interests of the donor and those of the donee'.
The Chairman: With this it will be convenient to discuss the following amendments: No. 28, in
No. 34, in
Mr. Boswell: These amendments are a little more substantial than the previous one. They relate to conflicts of interest, which I do not need to speak about at length. All members of the Committee will be anxious to avoid conflicts of interest. From the evidence of Master Lush to the scrutiny Committee, sadly there clearly have been cases when conflicts of interest or distortions of interest have already happened, so we need not rehearse that argument.
The amendments would build in a process whereby, before the instrument was drawn up, there would be further consideration when it was asked whether there was a conflict of interest in a certain situation, whether a conflict of interest might arise and, if so, whether it would invalidate the procedure. In the operation of the lasting powers of attorney, there would also be provision either for existing conflicts of interest or for those that might arise subsequently.
The Minister will know better than I do, because he is a lawyer, that law firms, when giving advice to clients, are scrupulous in avoiding conflicts of interest and in requiring individual partners of the firm, for example, to withdraw from cases when they might be seen, in any sense, to be at conflict. They are professional bodies and they receive fees, so it is extremely important for public confidence that that should be the case.
I understand that such issues are often family situations. It is arguable—some of us have already touched on such matters; indeed, I made such a point on Second Reading—that in family situations in particular, conflicts of interest might arise between younger children of a marriage, for example, who want assets because they have their own family, and older people, whom they feel do not need them any more and
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are hanging on to them. I understand that, but whether it is formally a conflict of interest I do not know. Perhaps the Minister can enlighten me.
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