Mr. Boswell: I regard that a perfectly satisfactory response. As the Minister said, the precedent for the list is set by the decisions that have come from the High Court. He is also right to remind the Committee of the importance of the code, which should inform all decisions being made for a person without capacity. Clearly, travel is clearly a consideration. The question is whether it should appear in the clause. After the Minister's explanation, I am inclined to think that it does not. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 ordered to stand part of the Bill.
Clause 18 ordered to stand part of the Bill.
Property and affairs: supplemental provisions
Mr. Lammy: I beg to move amendment No. 115, in schedule 2, page 39, line 31, at end insert
(d) must be sealed with the official seal of the Court of Protection'.
The Chairman: With this it will be convenient to discuss Government amendment No. 111.
Mr. Lammy: The amendments will ensure that the protection against fraud offered by an official court seal is continued under the Bill. Schedule 2 makes provision similar to that in the Mental Health Act 1983 dealing with the making of statutory will or codicils by the court. Amendment No. 115 to schedule 2 replicates section 97(1)(c) of that Act. The seal is placed on the will only once it has been executed and attested. The presence of the seal avoids the probate registrar having to check that the will is in the same form as the draft initialled by the court. The seal confirms the document's authenticity.
Clause 43 makes provision for the establishment of the new Court of Protection. Amendment No. 111 to clause 43 will ensure that there is no doubt that the Court of Protection has an official seal, as does the present Court of Protection. The benefit of a court seal is that it provides authentication as to the originality of a document. It helps prevent fraud, and it reassures financial institutions that they are dealing with the right person.
Amendment agreed to.
Schedule 2, as amended, agreed to.
Appointment of deputies
Mr. Boswell: I beg to move amendment No. 32, in clause 19, page 11, line 31, after 'reports' insert
'(whether relating to matters of P's personal welfare or the conduct of P's property and affairs, as the case may be)'.
The Chairman: With this it will be convenient to discuss amendment No. 33, in clause 19, page 11, line 32, at end add
'(c) to account to the Public Guardian for any loss incurred as a result of his negligence in the conduct of P's financial affairs or the misappropriation of P's property'.
Mr. Boswell: Briefly, we continue with the task of seeking reassurance from the Government about the safeguards for the welfare and property of the person without mental capacity. Amendment No. 32 provides that reports could refer either to personal welfare or to conduct of the person's affairs and property matters by the deputy, as might be appropriate. I suppose that some cases might include both; those might even be the typical cases.
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One of the benefits of the Bill, on which I have increasingly reflected, is an integration of the care and welfare provisions with the financial provisions. I think that that is realistic even if, on occasion, should matters come to court it would be necessary to consider them according to the particular facts and concerns, and using the right battery of expertise. It would be entirely proper to call for reports on those matters and inappropriate to call for reports on others if it was not thought necessary for those to be covered at that time.
Amendment No. 33 relates to accounting to the public guardian for any loss incurred as a result of negligence in the conduct of P's financial affairs, or the misappropriation of P's property. The Minister has reminded us many times, rightly, of the importance of the best interest clause; that is not an issue between us. However, it is, I think, implicitthe Minister will no doubt explain to the Committeethat within the operation of the enduring powers of attorney it is possible to call for an account of what is to be done and, if necessary, to issue proceedings if someone has been up to no good. It would be useful if he explained how that would transfer forward into the powers in question and assured us that that will happen.
We are all aware that we are considering people who are very vulnerable. I have tried to explain to the Committee, as have other hon. Members, that it is not typical to assume that it is always rapacious relatives who seek advantage who are involved in such matters. Deputies appointed by the courtwho may not be relatives, and will probably not be, typicallyhave a duty under whatever their profession may be, but also have a general duty to act properly in the interest of the person. I would be very surprised if the Minister could not give us satisfactory assurances on this matter.
Mr. Lammy: The amendments suggest what reports we should deal with. Amendment No. 32 specifies the financial affairs or personal welfare of the person lacking capacity, as appropriate. As the hon. Gentleman knows, the court will be able to appoint deputies to look after the financial affairs of the person lacking capacity or, indeed, his personal welfare, or both. Reports will therefore have to cover both financial and welfare matters.
I entirely understand why the hon. Gentleman has tabled the amendment. Up to now, receivers have dealt only with financial matters, so they have submitted accounts. Personal welfare deputies will need to produce a different kind of report, but it will be for the court to decide what those reports should cover.
If a deputy is appointed solely to manage the finances of someone who lacks capacity, he is likely to be asked to submit accounts, as receivers are at present required to do under the Mental Health Act 1983. A personal welfare deputy is likely to be asked to report on what decisions he has had to make for the person lacking capacity. The court will then be able to decide if the deputyship is still necessary. If a deputy is responsible for both personal welfare and finance, he may be asked to submit reports on both, separately or together. I am confident that that can be left to the discretion of the judges at the Court of Protection.
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Amendment No. 33, which deals with the possible content of financial reports, would require the deputy to account to the public guardian if the person lacking capacity incurred loss as a result of the deputy's negligence or misappropriation.
I fully understand and support the hon. Gentleman's desire to protect those who lack capacity from unscrupulous or inept deputies, but we can achieve what he wants without the amendment. The court will be able to require the deputy to report to the public guardian on any relevant matter. If there is a question whether the deputy has been negligent or dishonest, he can be asked to submit accounts, or the public guardian can investigate following representations by individuals. If the deputy is found to have abused his position, the order can be discharged. The court can also safeguard the interests by way of security. Therefore, there are a number of ways that the court can have scrutiny in this area.
On that basis, I hope the hon. Gentleman feels able to withdraw the amendment.
Mr. Boswell: In the light of those assurances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 ordered to stand part of the Bill.
Restrictions on deputies
Mr. Boswell: I beg to move amendment No. 35, in
clause 20, page 11, line 37, at end insert
'except in case of urgent necessity'.
We now move on to restrictions on deputies. As the Minister will appreciate, we are shifting to the personal care and welfare side of things. Nevertheless, this is all part of the complex matter of ensuring that the safeguards are watertight.
Clause 20(2) refers back to clause 16(5) and clause 17:
That is my primary concern, although I suspect from the way that the amendment is drafted that it would also embrace subsection (2)(b).
I am worried about whether there is a real-world problem in relation to an urgent situation. We are moving from what has been essentially a doctrine of necessity, where people have been able to do whatever was necessary, to a codification of the law. That, rightly, has to set limits as well as give powers.
I understand that it is not appropriate in normal circumstances for a deputy to have the power to prohibit a named person from having contact. That could be a serious and distressing issue if, for example, the person was a loved sibling or spouse who might have given rise to difficulties, or whom the deputy might have judged had done so. I agree that, ultimately, it would be improper for the Court of Protection to take that decision. However, circumstances could arise in which it would be
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necessary for a deputyalthough not necessarily a deputy; it could be somebody who is a carer under clause 5to exclude access to a particular person. Someone could have had a seizure of some kind, or in the extreme case have gone mad, or have become violent or distressed. Therefore, it might be necessaryto protect the person without mental capacityfor someone to be excluded, even if in normal circumstances it would be perfectly reasonable for them to have access.
I do not know whether there is still some overriding safeguard in clause 5 or in some residual doctrine of necessity that will enable the deputy to protect the person without capacity in those circumstances. The Minister must say whether there is such a safeguard. I envisage that that would be in exceptional cases, but that is exactly what we are trying to do: ensure that there are no exceptional circumstances in which the deputy has to sit back with folded hands and allow something to happen that would probably be very distressing, and possibly even dangerous, for the person without capacity. That is a small point, but equally it is an important safeguard to achieve.