90.Memorandum from Mr Richard S Webb (MIB
1. PERSONAL EXPERIENCE
1.1 For some six years, until our Mother
died in 1974, my sister Elizabeth and I held Power of Attorney
for Mother and Father. This worked very wellincluding the
selling of securities to buy an annuity and all medical and welfare
1.2 My sister Mary gave Power of Attorney
to her three children. This worked well in every possible way.
My sister Ruth has given Enduring Power of Attorney to the same
three but no action has yet been needed.
1.3 My sister Elizabeth, who now suffers
from Alzheimer's disease, has given EPA to her son Max. She is
now incapable. A muddle with the solicitor left him on his own
instead of including his wife Anna to work "jointly and severally".
Max has (as I write) entered hospital with Angina for observation
and possible surgery.
1.4 A friendly neighbour has had excellent
experience as Attorney in an E.P.A. for an old lady with no near
1.5 My wife and I have both made EPA in
favour of each other and our two children "jointly and severally".
We are aged 77 and 80.
2. DRAFT MENTAL
2.1 Those who have drafted this Bill have
viewed the matter from all possible anglesa mammoth task.
As far as I can tell most circumstances have been covered.
2.2 I have not been able to work out how
the donor would continue to be supported if only a single donee
is appointed in a Lasting Power of Attorney and he or she are
unable to act for any reason. This may become a problem with my
sister Elizabeth as I write. I have identified many Clauses and
Sections that relate to this but I am not clear who would initiate
action with the Public Guardian and/or the Court of Protection.
Please make it clear for a layman like me as to what to do. It
is probably clear already to those who drafted the Bill, (see
this memorandum section 2.9).
2.3 In the same way if someone becomes mentally
incapable with no LPA how could concerned family, friends or professional
group recover the position and establish and register a LPA?
2.4 There should be no absolute assumption
that a spouse should at once take charge of care arrangements
for their partner. They may be about to have an acrimonious divorce.
Medical and social workers should at least initially use their
own judgement. Perhaps Clause 4 (1) and (3) (b) helps.
2.5 Checks and controls are well set out.
However good will, patience, competence, time and available finances
will always be necessary for donees and deputies. It seems important
that no Agency is allowed to interfere with the activities of
a donee or deputy unless they are very sure of their ground. I
am aware that some terrible child abuse cases have been revealed
too late to help the childbut parents have their children
on their hands whether they like it or not. Carers, donees and
deputies for a person lacking capability are effectively volunteers
and heavy handed control would become known and make potential
donors less inclined to impose on relatives and friends and also
relatives and friends less inclined to become involved. A balance
of benefit should be found. Clause 31 or notes of guidance should
have a reference as to whom an initial complaint be made.
2.6 Clause 13, and others, appear to help
to avoid technical breaches of the Bill (or Act) when committed
in good faith to help the donor.
2.7 I trust that an interpretation of Clause
25(5) would not prevent my donee from ensuring that I have sufficient
pain relief should it be necessary even if the side effect is
terminal. Particularly I do not want to die of asphyxiation.
2.8 Under Schedule 1, Part 1, Clausel(l)(a),
where will the necessary form be available? Please state.
2.9 The Bill, Schedules and Explanatory
Notes are fine. Please will someone prepare and make available
a simple introductory statement, like the enclosed copy of the
first sheet of an Enduring Power of Attorney, as an introduction
for anyone thinking of executing a Lasting Power of Attorney and
a potential donee or deputy. There should also be prepared a summary
of how a LPA may be prepared, registered and used giving examples
of financial and property deals, general affairs, administration,
medical and welfare matters over which the donee or deputy may
have controlboth before and after the donor `P' becomes
mentally incapable. Note Annex A, Option 4, Clause 14. This document
could be the equivalent of the Highway Code which states on the
back cover that it is not a substitute for the Road Traffic Act,
1988 or other legislation but "as tending to establish
or negative any liability which is in question".
2.10 As more than one copy of a LPA will
be needed please state how Certified Copies may be obtained. I
hold 6 copies of my EPA.
2.11 Annex A is very interesting and makes
a clear case for introducing LPA's. But do not under estimate
the value of EPA's in the meanwhile if properly and tactfully
2.12 Costs may be a barrier for some people
either for financial reasons, in which case the DSS or Charities
might helpas is done now to encourage people to make Willsor
2.13 In time I hope that under Clause 3
of Schedule 1 it will become acceptable for a donee to be called
an attorneya far more dignified and explicit name.
3.1 The Draft Mental Incapacity Bill is
well thought out and should be enacted by Parliament with the
minimum of delay. If some or all my comments could be dealt with,
say, in a Highway Code type document this would be excellent.
3.2 To hold a LPA seems to be almost as
important as a Willan insurance policy. There will have
to be a Awareness Campaign since pathetically few people hold
EPA'S. at present. Government, the DSS, Social Services and Charities
could work together. Individuals could be given simple sheets,
like the front of the E.P.A., to pass to friends and relations.
Inertia needs to be overcome.