Mental Capacity Bill

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Standing Committee A

Tuesday 26 October 2004(Afternoon)

[Mr. Alan Hurst in the Chair]

Mental Capacity Bill

Schedule 1

Lasting powers of attorney: formalities

Amendment proposed this day: 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'.—[Mr. Boswell.]

2.30 pm

Question again proposed, That the amendment be made.

The Chairman: I remind the Committee that with this we are taking the following amendments: No. 28, in

clause 16, page 9, line 31, at end insert—

'(c) as far as may be practicable, the deputy has no conflict of interest in matters relating to the decision'.

No. 34, in

clause 20, page 11, line 36, at end insert

'or if subsequently to his appointment as P's deputy he has become aware of an actual or potential conflict of interest in his conduct of P's affairs'.

The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): It is clear that in most cases the attorney is likely to be a beneficiary of the will, as the hon. Member for Tiverton and Honiton (Mrs. Browning) suggested. Is it therefore right for us to say that this person—a trusted partner, a loved one—cannot be appointed as an attorney because a prescribed person, who perhaps does not know the donor, thinks that there is a conflict of interest? I do not think it would be right. We must allow people, as competent adults, to choose the attorney that they want and trust. The Bill ensures that the attorney must act in the person's best interests.

Amendments Nos. 28 and 34 would ensure that any deputy appointed by the court did not have a conflict, or potential conflict, of interest affecting his conduct regarding the affairs of the incapacitated person. I fully understand the underlying aim; it is important that a person who lacks capacity be protected from potential abuse at the hands of the court-appointed deputy.

However, I can reassure the hon. Lady that the best interests principle of the Bill deals with that; it binds both the court and the deputy, and acts as a sufficient safeguard in that respect. It will ensure that the court will not appoint a deputy if it is aware that he has a conflict of interest that might prevent him from acting in the best interests of the person lacking capacity.

Similarly, a deputy must always act in the best interests of the person concerned. Deputies will be supervised by the public guardian, and if he thinks that

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a deputy is acting contrary to the best interests of the person concerned, and is acting to further his own interests, to their disadvantage, one would expect the court to act. On that basis, I hope that the hon. Member for Daventry (Mr. Boswell) feels able to withdraw the amendment.

Mr. Tim Boswell (Daventry) (Con): I am grateful to the Minister for a responsive, although inevitably interrupted, reply. We have a common objective in avoiding fraud, and any misbehaviour or derogation of the interests of the person concerned. He has explained how that might work. I am particularly reassured in that a prescribed person—a person of a prescribed description or a named person—might be able to review any concerns in advance with the public guardian.

I seek another assurance from the Minister—a nod will do. I want assurance that where a conflict of interest might arise involving a person—perhaps one that was unanticipated at the time of the completion of the instrument—and they were worried about the situation, there would be nothing to stop them seeking the public guardian's advice and guidance about what they might do.

Subject to that—and I think that the Minister is nodding—it seems that there is a filter process at the beginning and the possibility of a feedback in the course of the execution of duties as a donee of an attorneyship. That, together with the best interests test, gets us about as far as we can reasonably go. Subject only to reflection—at least at this stage—I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Lammy: I beg to move,

That the Order of the Committee of 19th October 2004 be amended by—

(a) the substitution in paragraph (3) of ''Clauses 19 to 23'' for ''Clauses 19 to 27'', and

(b) the insertion after paragraph (3) of—

''(3A) the proceedings on Clauses 24 to 27 shall (so far as not previously concluded) be brought to a conclusion at 11.25 a.m. on Thursday 28th October;''.

The programme resolution was amended in that way earlier today in the Programming Sub-Committee, to ensure that we reach the advance decision part of the Bill on Thursday morning.

Question put and agreed to.

Schedule 1

Lasting powers of attorney: formalities

Mr. Paul Burstow (Sutton and Cheam) (LD): I beg to move amendment No. 159, in

schedule 1, page 39, line 11, after 'power', insert—

'(1) Where an instrument authorising a welfare attorney to make decision is used for the first time, the relevant body has a duty to notify the Office of the Public Guardian that the instrument has been used. The relevant body will be the NHS body, or social services authority, where the decision is being made for care or treatment and it is apparent to that body that in relation to a particular matter on a particular occasion the donor lacks the capacity to make the decision and the donee wishes to make it on behalf of the donor.

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(2) Where an instrument authorises the donee to make decisions in relation to the donor's property and affairs and if the donor lacks or the donee reasonably believes that the donor lacks the capacity to make a decision in relation to aspects of their property and affairs or in relation to claims and payments of benefits, the donee has a duty to notify the Office of the Public Guardian and the donor that he intends to use the instrument to the Office of the Public Guardian must include a certificate from a prescribed person to the effect that the donor does not at the time of the notification have the capacity to make all decisions in relation to their property and affairs.

(3) Regulations may specify the manner in which the bodies in paragraph 23(1) and the donee in paragraph 23(2) notify the Office of the Public Guardian, and how it is indicated on the instrument that it is now in use.'.

In moving an earlier group of amendments, I inadvertently spoke to this amendment as well. Its intention is to ensure that the process of registering LPAs is not the only point at which the Office of the Public Guardian is aware of their existence; a mechanism should be triggered whereby either a public body or the individual has a responsibility to notify the OPG that they have started to exercise authority under the LPA. I have already heard something of the Minister's response to the idea, but it would be useful if he went a little further and clarified whether the Government might be prepared to entertain it.

Mr. Lammy: We had some discussion on the matter this morning, and I do not want to add much to what I said then. I stated that the public guardian would not generally be involved once the LPA has been registered unless concerns are raised about the way in which the attorney or attorneys are exercising their powers. That is because a person has capacity when the LPA is made. We have discussed the various considerations, which we lay out in the code, that affect the decision.

That understanding has a firm basis in our law. The scrutiny is different from that which one would expect when a deputy is appointed by a court. I sought to emphasise this morning that it is important to remember that an LPA will generally be exercised by a close relative of the person who lacks capacity. On the basis of what I have said, I hope that the hon. Gentleman will withdraw his amendment.

Mr. Burstow: I have heard what the Minister has said. I will want to return to this issue at a later stage, but for now, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Clause 10

Appointment of donees

Mr. Burstow: I beg to move amendment No. 161, in

clause 10, page 5, line 31, after 'who', insert '(a)'.

The Chairman: With this it will be convenient to discuss the following amendments: No. 24, in

clause 10, page 5, line 31, after 'bankrupt', insert

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' or who has been found an unfit person to hold a directorship under the Companies Acts, or who has an unspent conviction for fraud or misfeasance'.

No. 25, in

clause 10, page 5, line 32, at end insert

'or if so appointed and subsequently to become bankrupt, unfit or convicted of fraud or misfeasance'.

No. 26, in

clause 10, page 5, line 32, at end insert

'provided that no individual may be appointed to more than 10 such attorneyships without the express permission of the Court of Protection, and that any such attorneyships executed without such permission after the first ten shall be invalid'.

No. 160, in

clause 10, page 5, line 32, after 'affairs', insert—

'(b) an individual whose name is registered on a list under section 81 of the Care Standards Act 2000, shall not be appointed as a donee of a lasting power of attorney, unless the donor has had an opportunity to ascertain whether the proposed donee is included in such a list.'.

No. 144, in

clause 16, page 10, line 4, at end insert—

'(c) is bankrupt or an individual whose name is registered on a list under section 81 Care Standards Act 2000.'.

No. 145, in

clause 19, page 11, line 8, leave out 'without his consent' and insert—

'(a) without his consent,

(b) if he is bankrupt, or

(c) if he is a person whose name is on a list under section 81 Care Standards Act 2000.'.

No. 162, in

clause 13, page 7, line 42, at end insert—

'(e) subject to subsection 12, the inclusion of the donee on a list under section 81 of the Care Standards Act 2000'.

No. 163, in

clause 13, page 8, line 14, at end add—

'( ) The inclusion of the donee on a list under section 81 of the Care Standards Act 2000 does not terminate his appointment unless the donor has lost the capacity to make a decision on the matter and the donee's inclusion on the list was subsequent to the appointment.'.

 

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Prepared 26 October 2004