29.Supplementary memorandum from the Law
Society (MIB 1194)
There are three points the Law Society would
like to make, all of which concern financial matters. The first
two are about missed opportunities, while the third point identifies
unnecessary bureaucracy created by the Bill.
1. The objective of this Bill is to introduce
new mechanisms to allow certain decisions to be made. However
the opportunity to consolidate the law relating to Powers of Attorney
has been missed. Currently as proposed under the Bill there will
be four principal types:
A pre-existing Enduring Power of
Attorney under the 1985 Act.
Lasting Power of Attorney under the
Ordinary Power of Attorney under
the 1971 Act.
Trustee Power of Attorney under the
1971 Act (valid only for 12 months).
The Law Society recommends that the 1971 Act
is repealed and the powers described above dealt with under the
new Act, within the instrument which also vests Lasting Powers
2. The Law Commission in its report (No
231) highlighted its concerns about the appointeeship processthe
process whereby a substitute is appointed by the Secretary of
State to receive social security benefits on behalf of an incapacitated
adult. Problems with this process were also raised by the Parliamentary
Ombudsman in her report of 8 July 2003.
The Law Society considers that that the absence
of any adequate appeal provisions for individuals subject to appointeeship
is unsatisfactory. Presently an individual who wishes to challenge
the appointment can merely request that the Secretary of State
exercise their discretion to revoke the order. In our view this
is contrary to natural justice and infringes the individual's
human rights under Article 6(1). We would suggest that an alternative
remedy would be to enable the individual under this Act to have
a right of access to an Appeals Tribunal.
3. Under Schedule 4, Receivers appointed
by the Court of Protection prior to implementation of the Act
will be accountable to the Public Trustee. The Public Trustee
is then accountable as a deputy to the Public Guardian. The Law
Society is not convinced that this additional layer of bureaucracy
will enhance any purported protection; it is more likely however,
that it will cause unnecessary delays.