Mental Capacity Bill

Public Bill Committee, 26 October 2004.

Standing Committee A

Mental Capacity Bill

George Howarth (Labour, Knowsley North and Sefton East)

On a point of order, Mr. Hurst. I wonder whether you can assist me. I have been reflecting on last week's deliberations, particularly those on the best interests test under clause 4. There was a large degree of agreement on the point that we want to reach, but no agreement on how to achieve it, such as by altering the clause if necessary. Before Report stage, it might be helpful if the Committee collectively took advice from the British Medical Association and other organisations about how to improve the clause. I suspect that the answer will be that such action is not possible, but I seek your guidance, Mr. Hurst.

Alan Hurst (Labour, Braintree)

We cannot go further back in the Bill than the point that we have now reached. Any new matters or amendments to clauses that have already been dealt with will have to be considered on Report.Clause 9 Lasting powers of attorney

Clause 9 - Lasting powers of attorney

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment No. 164, in clause 9, page 5, line 11, after 'capacity', insert

'where the authority of the donee has been limited to either one of (a) or (b).

(1A) There is no presumption that the donee can make decisions on behalf of P or the donees' views should take precedence over others who are consulted in relation to matters that relate to (a) if the donee's authority is limited to (b) and (b) if the donee's authority is limited to (a).'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following: Amendment No. 158, in clause 9, page 5, line 15, leave out 'and registered,' and insert 'registered and notified'.

New clause 5—Notification of the use of the LPA—

'(1) Where the donor objects to the use of an LPA on the grounds that he considers the application is premature because he has the capacity to make the decision, if this ground is established to the satisfaction of the court it must direct the Public Guardian not to seal the notification.

(2) The court must direct the Public Guardian to cancel the notification on being satisfied that the donor has regained mental capacity.'.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Perhaps I can comment on the point of order in the context of this debate. It is to the Government's credit that they subjected the Bill to a scrutiny progress that allowed some interaction to take place at an early stage of the consideration of the Bill by the House, in so far as the BMA, organisations such as the General Medical Council and parties such as the

Catholic bishops and others, discussed how the best interests test would apply. The purpose of this group of amendments is to explore further the interaction between clause 9, which deals with lasting powers of attorney, and clauses 1 to 4, which deal with best interests and the principles of the Bill.

On a point of order, Mr. Hurst, can you arrange for someone to adjust the lights because I feel as though I am under a spotlight?

Alan Hurst (Labour, Braintree)

The House staff are already ahead of you, Mr. Burstow.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Thank you.

The purpose of tabling the amendments was to explore why the principles under clause 1 seem to have been decoupled from the rest of the Bill and, hopefully, to receive some reassurance from the Government. The explanatory notes to clause 9 state:

''The 1985 Act will be repealed on implementation of the Bill, but the legal effect of EPAs''—

that is, enduring powers of attorney—

''already made under the current law is preserved and integrated into the scheme of the Bill by clause 62(3) and Schedule 4.''

To what extent is the existing system of EPAs being truly integrated and rolled forward into the new system? Clearly, in certain aspects it is not? It worries me, for example, that the principles do not apply. The aim of the amendments is to put it beyond doubt that when a person has chosen different donees to make decisions on his behalf, there is a clear distinction between their powers. In other words, someone who has appointed one person to act as his financial attorney and another to act as his welfare attorney might have chosen to allow his financial attorney to act prior to his losing capacity. However, the Bill rightly stipulates that a welfare attorney can act in respect of welfare matters only when the person has lost capacity. The question is whether there is differentiation of the status of different donees under the Bill.

Donees should probably not have different status, especially in matters that are outside the purview of the powers donated to them by the donor. My concern is that, if a donee is empowered by the instrument to make decisions only in relation to welfare or finance, there might be a tendency to take account of the donee's views over those of a relative or other relevant party. Paragraph 4.26 of the draft code of practice states:

''Even if the donee has only been appointed to manage the person's financial affairs, the donee may have some knowledge about the person's wishes and feelings which are relevant to his/her best interests''.

That may well be so, but it is important to remember that the donor has, of his own volition, chosen a particular donee to make decisions on one aspect of his life alone. A donor may have full confidence in a person to make the best decision for him financially—the donee might be a highly qualified accountant and thus competent in that regard—but be less confident about that person making welfare decisions. The donee might know a lot about the donor's financial circumstances and how to benefit him in that respect,

but know nothing about the donor personally to enable him truly to understand the donor's wishes, feelings and needs in respect of welfare matters.

It is often, but wrongly, believed that an EPA enables an attorney to make a welfare decision, as well. There is almost an assumption that proxy decision making can be held to be taking place. The amendment would make it clear that, although a donee should be consulted as part of the decision-making process—the amendment is not trying to diminish the Bill's aims in that respect—his views should be given equal weight to, and certainly no greater weight than, the views of others who may be consulted. No one should take precedence just because they have been appointed donee for one particular purpose. The code of practice should make that clear, and I hope that the Minister can give us comfort that it will. It should also make it clear that, where a donee has been appointed in relation to a matter that is not the subject of a decision, there is an obligation to consult others to establish past and present wishes.

Under new clause 5, we are trying to deal with some concerns that some people outside the Committee and I have about the Bill. The first is that as lasting powers of attorney become established—when the Bill has gone through all its stages and this part of the Bill comes into practice—large numbers of people will wish to avail themselves of the measure, not just in terms of finance but in relation to other matters, too. We therefore have to ask—as did the Joint Committee—how can we ensure that safeguards are put into the provision and that there is independent monitoring of what happens?

That brings me to the role of the Office of the Public Guardian. In future, it will become aware of the vast majority of LPAs as they are registered, but the problem with that is that registration is no indication of the power being used, because one registers ahead of loss of capacity. How can we be certain that an LPA has been triggered and is being used appropriately? Under a later group of amendments, we will deal with safeguards relating to the individual who becomes the donee, checks on donees, and so on.

Tim Boswell (Conservative, Daventry)

Anticipating the good argument that the hon. Gentleman is developing, I should like to add that we should also consider the protection of the person who is dealing with the individual concerned, perhaps in connection with a financial or welfare matter. There is the question of knowing the status of the person—whether he still has mental capacity—and whether someone is claiming to have triggered an LPA without having succeeded in doing so.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

That is a fair point. I will listen carefully to what the Minister has to say when we deal with whether the principles at the beginning of the Bill apply to donees. It is important that the steps that the principles say the individual has to go through—including presumption of capacity, assisting in taking decisions and ensuring that communications are

facilitated—are gone through as a matter of course by a donee before he takes a decision. Capacity could well be a fluctuating thing, and certain decisions could continue to be made by the individual who donated power of attorney.

Tim Boswell (Conservative, Daventry)

Does the hon. Gentleman agree that information and training for donees will be critical?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The hon. Gentleman is correct. The Joint Committee commented on that at some length, and a number of those who made representations to that Committee expressed a desire for good training to enable donees to understand how to discharge their responsibilities fully. During our consideration of the clauses on LPAs, it would be useful to hear about the Government's intentions regarding resourcing and training, and how they envisage training taking place.

Most people registering LPAs will hope that they never have to use them; in so doing, they will be safeguarding themselves against a contingency by making a judgment, when they are able to, about whom they want to act on their behalf in unknown circumstances. There are likely to be very large numbers of LPAs, but under the Bill no indication will be given to the Office of the Public Guardian that an LPA is in use. The Bill is lacking in that respect. There ought to be some mechanism to alert the Office of the Public Guardian about which LPAs are live and which are inactive.

The second concern is about how banks and financial institutions will deal with registered LPAs, which might deal solely with financial matters. Under enduring powers of attorney, banks are aware that if the power is not registered, the person who lacks capacity but who has chosen to allow the attorney to deal with his affairs—let me make sure that I have that the right way round. The point that I want to make is that if an LPA has not been registered, it is not live; if it is not live, it cannot be used. I see from people's faces that I have got that wrong. I want to make sure that the Minister follows my argument, even if I have not expressed it correctly. When enduring powers of attorney have not been registered, it is still possible to use them if the person has granted a power of attorney ahead of their losing capacity. What I am trying to do with the amendments—incoherently at the moment, it seems—is ask the Minister to make sure that the construction of the law on LPAs is a lot clearer than I have just enunciated. If nothing else, I have successfully demonstrated that this is a complicated area of law.

The concern is that banks with LPAs will not know whether they have to deal with the donee—whether the donee has authority. Without making its own separate set of checks, which it has not had to make hitherto, how can a bank be confident? I hope that the Minister can deal with that issue. It has been put to me that a bank, in having to make such additional checks outside the system, could breach a person's article 8 rights, relating to private and family life, under the European convention on human rights and the Human Rights Act 1998. I am sure that that is not the Government's intention.

The amendments are designed to address concerns about how to make a good innovation and an important improvement that much clearer and safer. The Joint Committee and many who made representations to it felt that LPAs were an important innovation. Take the example of the use of welfare attorneys in a decision involving a public body. Suppose that there was an accident in which a person lost capacity because of a head injury, and the person whom they had nominated as donee was a family member. In such traumatic circumstances the donee would be suffering from shock and grief and might well not do what the law required them to do about registration, notification and so on. Our aim in the amendments is to regularise the position and to ensure that the Office of the Public Guardian is made aware that an LPA has been activated, and that the relevant public body—the national health service or the social services authority—may, in such circumstances, give notice to the Office of the Public Guardian. As for financial LPAs, it is unlikely that a financial institution would have any direct contact with the individual for whom the instrument is being used; in that case, the obligation is on the donee to notify, with evidence from a prescribed person—a doctor or other professional trained in assessing capacity—that the LPA needs to be used because of the donor's incapacity.

The amendments would improve the safeguards built around LPAs to ensure that those who act in good faith as a result of an LPA being used by a donee can be certain that the person on whose behalf those decisions are being made is properly safeguarded. I hope that the Minister can reassure us on that when he responds to the amendments.

Tim Boswell (Conservative, Daventry)

Listening to the hon. Gentleman, I was powerfully reminded of the old chestnut of the person who confided to his friend that he was confused about a certain matter and was advised by his friend to attend a conference to learn more about it. He went to the conference and was then debriefed by his friend; he reported that he was still confused, but at a somewhat higher level. In a sense, that is both the situation in which the hon. Gentleman finds himself and the situation in which the Committee needs to find itself in order to seek clarification on these matters.

I have a general point to make about our approach this morning. The hon. Gentleman's intentions and objectives are impeccable: they are to reveal points of concern about the operation of the detailed provisions for specific cases in which mental capacity is lost, as opposed to the general principles and the general authority—as it used to be called—which we have discussed exhaustively. In addition, he wants to ensure that the safeguards are watertight and unforeseen circumstances do not arise. I have no intention of speaking generally to the hon. Gentleman's amendments and I will understand should he choose to follow suit in respect of mine. This morning's amendments are all in the same ballpark, being designed to get assurances from the Minister about

how the provision will work. There is a slight element of relief, because these matters are not quite of the day-to-day intensity of the ones that we have already discussed and to which we will return.

Before I discuss the amendments, I would like to flag up two points. The first is that the Minister might find it helpful to consider, and to start commissioning at an early stage, explanatory material with a view to laypersons who may become donees of powers of attorney. It should set the matter out as far as possible in a clear and simple way—the Plain English Campaign could be enlisted and algorithms, diagrams and so on could be used. Even we might find understanding the difference between a donee, a deputy, an independent consultee, a Lord Chancellor's visitor and all the rest, confusing. It is important that people who are not dealing with this all the time—and, dare I say, some who are—be steered through the process.

The second point, which I touch on briefly in relation to the point of order made by the hon. Member for Knowsley, North and Sefton, East (Mr. Howarth), is that there are, of course, continuing issues. You ruled rightly on that, Mr. Hurst; we cannot go back to them. However, I hope that those who have already taken an interest in the Bill's progress through this Committee, and the Joint Committee before it, will feel able to contact Committee members to inform us before we start Report stage. There is a lot to get right and the Committee's common intention is to do so.

I share the concern of the hon. Member for Sutton and Cheam (Mr. Burstow) that this matter should be carefully articulated. From his remarks, I will pick out two points that concern me. The first is that there is an awkward overlap; legislation that has been in place for nearly 20 years in the shape of enduring powers of attorney is to be repealed, then re-enacted; alongside it, in parallel, the Bill introduces the regime of lasting powers of attorney. We must be certain that the concepts that are to be extinguished then reactivated are as far as possible the same as the LPA powers.

Mr. Burstow indicated assent.

Tim Boswell (Conservative, Daventry)

I see the hon. Gentleman nod. I have tabled amendments that address the fact that although the concept of mental incapacity was banished from the Bill after the work of the Joint Committee, it has now suddenly reappeared in the schedules in relation to enduring powers of attorney. I understand that the reasons for that might be legal, but it is the kind of mismatch that may prove difficult to resolve.

In relation to the amendments currently being discussed, there is an issue about the status of powers under an enduring power of attorney compared with powers under a lasting power of attorney. Because the latter are conferred by later legislation and are ''more current'' will they in any sense trump the powers that already exist? The hon. Gentleman pointed out that LPAs introduce for the first time the power to have an attorney explicitly for matters of health and welfare, whereas the EPAs relate to matters of property and affairs.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am listening carefully to the hon. Gentleman and an additional thought occurs to me. Someone may already have an enduring power of attorney in respect of financial matters but now, with the benefit of this legislation, they might choose to keep that in place and also have lasting powers of attorney in respect of welfare and other matters. A concern then arises, which I want the Minister to address: will there be parity of esteem in terms of consultation with those individuals?

Tim Boswell (Conservative, Daventry)

The hon. Gentleman anticipates my expression of the thought that I had when listening to his speech. Is there any difference in quality between the two? Would one prevail over the other, and in what circumstances might it do so?

Someone who is considering their affairs might already have prudently taken out an enduring power of attorney for financial matters, because he is the kind of person who likes to cover himself —he always has a will and all the other things that all of us should have, but many of us, sadly, fail to have. Such a person might say, ''I need to bring things up to date. Do I need to have a whole new shooting match even if the same person is involved, or can I build on my EPA by adding an LPA to it—and if so, would it make a difference to the authority of the donee if she was the same person operating in one case under the old terms and in the second case under the new legislation?'' Those are significant issues.

I do not quite see eye to eye with the hon. Gentleman with regard to his attempts to articulate a distinction between financial powers and health and welfare powers, which the Bill now provides for, and to suggest that the powers in one should not automatically steer decisions in the other. I understand the motive behind that, but there will be circumstances in which there could be issues that go wider than simply the financial or simply welfare. They might interact in relation to the provision of care relating to where somebody is to live. For example, if the individual were to live in the community with a support package, the financial attorney could reasonably say, ''Well, I have to pay for this, so I have an interest in it.'' Conversely, when a financial attorney is considering someone's affairs, the welfare attorney might say, ''Well, I have an interest in how you dispose of this—in whether you are investing for income or capital growth or whatever—and I demand to be consulted.''

I may have overlooked something but, although I know that we all want such conflicts to be resolvable, it is not clear to me how that would be achieved. I suspect that such conflicts would ultimately have to go to the Court of Protection to be resolved—just as conflicts might do if they were specifically about financial or health matters as separate issues. These are not matters of huge concern, but if we do not get them right, some people will be puzzled in future. For example, professionals acting in good faith might give misleading advice to individuals who want to secure their position, or to persons acting as attorneys. There might be a degree of avoidable confusion, and any confusion needs to be kept to a minimum.

The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): The important point to make on this amendment is that the lasting power of attorney is made when the person has capacity. That is an important distinction. It was unfortunate that I had to intervene on Second Reading to ensure that people understood that appointing a deputy, which we will deal with later, is an entirely different matter in which the court has imposed a third party. Any of us in this Room, as we sit here and ponder our future life—whether on matters of finance, health or welfare—can appoint an attorney, and we do so when we have capacity. Most of us, in those circumstances, would appoint a loved one—a partner or a perhaps a sibling.

It is also important in discussing enduring powers of attorney to bear it in mind that people are doing this now. Some people make such powers because they want someone—perhaps a sibling—to deal with their financial arrangements while they are abroad. I have known constituents who have emigrated to France, or who spend nine or 10 months there—generally well-off people, although there are not that many in Tottenham—and appointed someone with enduring power of attorney to deal with their financial arrangements. It is important to emphasise that the enduring power of attorney regarding financial matters, and the lasting power of attorney, can be appointed when someone has capacity. The health and welfare context becomes relevant when someone with capacity loses it. It is important to make that distinction.

The amendment would avoid any doubt about the scope of an attorney's decision-making power. It seeks to make it clear that a person appointed to make those personal welfare decisions cannot make them about property and affairs, or vice versa, and their views should not take precedence over those of others involved in a decision that is outside the scope of their powers.

It might be helpful if I explain why the Bill already deals with the concerns of the amendment. Although clause 9(1) provides that a lasting power of attorney can confer authority on the attorney to make decisions about the personal welfare, property and affairs of a person who lacks capacity, it is clear that such a power may be limited to personal welfare, property and affairs, or specified matters. It is for the person who has capacity to limit, in whatever way, the lasting power of attorney that they are setting up.

The clause says that a lasting power of attorney can confer the authority to make decisions about any of or all these matters. ''Any'' indicates either personal welfare, property and affairs, or specified matters only, and ''all'' clearly means personal welfare, property and affairs. There will be a range of LPAs, depending on the desire of the person who has capacity and is making the decision.

In relation to the views of others, there is clearly no question as to one view taking precedence over another. In determining best interests, the views of

others are to be taken into account, but there is no requirement that one should be given more weight than another.

In that respect, it is important that we understand the obligations to consult, which are fundamental to an LPA. That takes us back to our discussions on best interests. When we talked about best interests having relevance to the entirety of the Bill, except in regard to advance decisions, we said that under clause 4(6) there is a duty to consult. Under clause 4(6)(c), there is a requirement to ensure that there is no precedence in decision making, but there is a requirement to consult.

Tim Boswell (Conservative, Daventry)

The Minister is helping the Committee. What if someone wishes to draw up a lasting power of attorney, anticipates the problems to which I referred—the hierarchy of decision making—and seeks, in the power of attorney, to say whether, in the event of a disagreement, the views of A, the attorney, or B, the donee, should prevail? Would it be open to that person to specify in the power of attorney a dispute resolution procedure between the two attorneys, which would be valid irrespective of any process—whether in the Court of Protection or otherwise—and subject only to the best interests test?

David Lammy (Labour, Tottenham)

It would have to be subject to that test. Of course, the person who has capacity can specify whatever he wishes in his LPA, but it has to be subject to best interests. It is always subject to the fiduciary duty attached to the LPA. That is the other thing that we should remember: there is always a fiduciary duty. If someone accepts that undertaking for their partner, or a child does so for their parent, they have a fiduciary duty. If the parent comes back from France and the child has sold the house, it is on the basis of that fiduciary duty that the parent will take their son or daughter to court, because the child breached that duty.

Of course someone can specify something in their LPA, but we come back to our discussion on what the court would expect of a reasonable person in the circumstances. That is suggested under clause 4(8). We must ask whether a reasonable person living out that fiduciary duty had acted in a particular way. The Bill provides that a person cannot do an act in connection with care and treatment if the act conflicts with a decision made by the donee of an LPA; he can do so only if the decision falls within the scope of his authority to act under the LPA.

It is important also to read clause 9 in the context of the fact that the relevant part of the code of practice is quite extensive, although I am not suggesting that we would not want to add to it in consultation. The draft code of practice emphasises the fact that different attorneys may be appointed to make different types of decision. It is intended that guidance and prescribed information in the LPA will inform both donors and attorneys that the donor can, say, confer authority to make personal welfare decisions to one person and authority to make property and affairs decisions to another.

A parent may choose one particular child to take on health and welfare decisions, and another to take financial decisions, because of the parent's assessment of the attributes and strengths of the child. Under the LPA, the donor can choose to confer property and affairs decisions on another person or they can choose the same person to make both types of decision.

It is also intended that prescribed information will say that an attorney can act only within the scope of the authority that he has been given, and that he may not make decisions about personal welfare or property and affairs unless the donor has given him authority to do so. Therefore, he cannot stray into areas in which he was not given power. We are making that clear in setting up the LPAs, because under the old enduring powers of attorney there were issues involving straying beyond those financially prescribed matters.

Training and publicity campaigns will be carried out during implementation. We hope that they will educate professionals and the public about LPAs and how they operate, so that there can be no doubt about them. Guidance will be provided to the public so that people are aware of the wide powers that they will be giving to an attorney. Attorneys will also be made aware of their fiduciary obligations. The public guardian will provide detailed guidance and advice to attorneys on their powers and the limitation of those powers.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

It is helpful to hear some intentions as to training and providing information and advice, but will the Minister more clearly separate the two, so that we know to what extent this will involve the provision of written information and of training? On whom will the duty and responsibility to ensure that that training takes place fall?

David Lammy (Labour, Tottenham)

When I talk about guidance, I mean written information provided both for the attorney, or someone who might be considering becoming an attorney on behalf of someone else, and for members of the public. That is key.

In implementing this and ensuring that professionals and others understand it, it is important to recognise that the Office of the Public Guardian must by necessity have a relationship with local authorities and others, and that there will be professional seminars and workshops that enable people to understand the detail in a more meaningful way. There must be both written and seminar and workshop-type activity to ensure that there is that understanding across the country. However, it is important to remember that the public guardian's office already has a relationship with almost every part of the country.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Will the Minister reflect on the following request? At an appropriate period after the Bill has been enacted, such as after five years, it might be right to undertake research to ascertain how effective training and information campaigns have been and to what extent the provisions translate into people genuinely understanding the legislation in practice.

David Lammy (Labour, Tottenham)

If we were not to do that, it certainly would not be the first time that Parliament did not revisit such issues and reflect on the workings of such things. Making those subjective assessments can be difficult, but I am happy to take that suggestion away with me.

Tim Boswell (Conservative, Daventry)

In pursuit of the thought that has been put to the Minister, does he agree that he needs to realise that the context of all this is the adverse experience that has already been reported in relation to the administration of financial affairs by the Master of the Court of Protection, who produced the staggering ballpark figure that 15 per cent. of the EPAs were subject to fraud or other concerns? The training side and what might be termed the policing side may be matters to which we have to return, but it is important to set such issues in context now.

David Lammy (Labour, Tottenham)

Because there have been problems, it is right to set up the lasting powers of attorney and to ensure that there is a requirement—for the first time—to register and that we get the training, guidance and other work under way. We must make it clear that the necessity at the centre of the Bill is to ensure that those fiduciary obligations are discharged in someone's best interests.

As I said in another context a few days ago, there is a requirement to consult. The provision is about not just working alone, in silos, but consulting others. When someone lacks capacity, or even if he has capacity in respect of financial matters, putting in statute the obligation on that person to consult for the first time will ensure that some matters with which the hon. Gentleman is concerned will not happen in the same way because people will not be operating in a world where they are a law unto themselves. In terms of best practice, that was going on anyway, but I am referring to putting the obligation in statute.

Amendment No. 158, which flows from amendment No. 159, aims to ensure that failure to notify the public guardian the first time that an attorney uses his authority will mean that the lasting power of attorney has not been created. Under clause 9(2)(b), a lasting power will not have been created unless the LPA document

''is made and registered in accordance with Schedule 1''.

I understand the aim of the hon. Member for Sutton and Cheam in tabling the amendment, but it is difficult to see how it can work without altering the registration requirements under schedule 1. They provide that the public guardian must register an LPA at the end of the prescribed period, that period being the time allowed for objections to be made by named persons. That is obviously important. Family members or others might want to register their concerns. Registration cannot be put off until such time as the donor first uses his power. That would defeat the object of making the requirement to register, which we are attempting to do for the first time.

Tim Boswell (Conservative, Daventry)

I am trying to follow the debate. I did not table the amendments, but the Minister has been talking about the registration process and I understand the argument he has developed. Perhaps

we shall return to the matter, but I accept that some of his concerns involve the first use of a power that may have been registered. Is it not the critical issue that there should be a proper registration process and, when that process is enacted because of an initial loss of mental capacity, that people including the public guardian, the general public and others who may have relevant dealings should know about it, otherwise they will not know whether it is in force or valid?

David Lammy (Labour, Tottenham)

I emphasised that the LPA was a document made when someone has capacity and wants to make the distinction between the role of the LPA and the attorney, and the role of deputy, and wants to underline the fiduciary duty and the best interests obligation. Under our common law system, the person makes the application. There is a process that involves the public guardian and registration—and, quite rightly, any objections or consideration of the application and its bona fides—but there is not an undertaking thereafter to look over the shoulder of individuals who have that power of attorney, unless things are going wrong. That is why the duty to consult and other things become so important.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I do not disagree that the duty to consult is important. Obviously, it is a safeguard that can trigger a concern, which could then bring to light the need for some sort of intervention to deal with abuse of the donee's powers. It often happens that on the face of it everything appears to be going along happily, family members, for one reason or another, do not ask too many questions, and as a consequence of that, certain things do not come to light. Is the Minister saying that in those circumstances the Office of the Public Guardian would not have a role in sampling, checking and satisfying itself that people were fully discharging their responsibilities under this legislation in respect of lasting powers of attorney? Will there not be any mechanism whereby the Office of the Public Guardian can do that sort of monitoring work, in the public interest?

David Lammy (Labour, Tottenham)

I am sorry if the hon. Gentleman misunderstood me; of course the public guardian can do that. He looks into complaints about LPAs all the time. Indeed, Members of Parliament bring complaints to his attention, and he would look into those.

I also say to the hon. Gentleman that we are losing sight of another important part of the Bill, which he was keen to emphasis at our first sitting a week ago, and which cuts to heart of what the hon. Member for Daventry (Mr. Boswell), too, has been saying: a key component of the Bill is that functional test—the notion that someone comes in and out capacity. Therefore, the presumption that there is some point at which someone loses capacity, and the public guardian should then kick in with some extra hurdle, runs contrary to the Bill, because an attorney will not always have a blanket provision to act.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister will forgive me if I do not accept that this is about placing another hurdle in the way of the donee's ability to discharge their function properly. It is about ensuring, in the public interest, that the system of law that we are enacting is being truly and faithfully implemented, not abused. In discharging that interest, I want to be clear about whether it is the Government's intention to allow the Office of the Public Guardian to select live LPAs on a random sample basis in order to satisfy itself that they are being discharged appropriately. It would not be acting on the trigger of a complaint, it would simply be examining a random sample.

David Lammy (Labour, Tottenham)

The answer to that has to be no. A person makes a decision when they have capacity. People have fiduciary duties: a duty not to take advantage of their position; a duty to act in good faith and within the scope of the authority that the LPA gave them; and a duty not to delegate that authority and to respect confidentiality. They also have a duty always to act in a person's best interests. In doing so, they must consult, take into account their values, beliefs and wishes, and make an objective assessment of their best interests. Under the Bill, for the first time, we require such a person to register with the public guardian. If anyone has concerns they can check that register.

Alan Hurst (Labour, Braintree)

Order. Hon. Members must beware of infringing the rule against repetition.

David Lammy (Labour, Tottenham)

You are right to correct me, Mr. Hurst. I simply wanted to ease the hon. Gentleman's fears by emphasising the safeguards that currently exist.

Angela Browning (Conservative, Tiverton and Honiton)

When we took evidence from Denzil Lush in the Joint Committee, one thing that emerged—which many Members of Parliament may have experienced—was that when problems of misappropriation and similar situations are found, the statutory authorities rarely bring some form of court action. There is sometimes a readjustment of finances based on their findings, but because they are dealing with elderly incapacitated people, who might be the key witnesses, there is often no retribution for the person concerned, and that in itself is an incentive for people to try it on.

David Lammy (Labour, Tottenham)

I hear what the hon. Lady says, but I have already said—and I do not want to labour the point—that the ''best interests'' requirement puts in place, for the first time, what amounts to that fiduciary duty. The requirement to consult, for example, deals with that problem.

Tim Boswell (Conservative, Daventry)

I am conscious of giving the Minister a hard time, but I am on a separate tack, prompted by what he has just said about ''best interests''. So far the Committee has been concerned with alleged failure to operate a power of attorney properly as a donee. Will the Minister enlighten the Committee on a situation where a donee may be dilatory in taking up their appointment at a time when mental capacity has been lost? Is that a separate offence? Would it be regarded

as contrary to the best interests of the person who drew up the lasting power of attorney? Should not donees also be careful not to hold back when they should actually be taking action?

David Lammy (Labour, Tottenham)

Yes; that would be contrary to best interests, and a breach that people could challenge, and the public guardian could investigate if a complaint were made. I remind hon. Members that the public guardian also has the power to refer matters to the Court of Protection, which has the power to revoke an LPA, and if the person needed someone to act as a donee, the Court could put in place a deputy with certain provisions, restrictions and safeguards. There is a raft of possible measures.

I understand the aim of the hon. Member for Sutton and Cheam in tabling amendment No. 158, but it is difficult to see how it would work without altering the registration requirements.

New clause 5 makes provisions for the donor to object and challenge his attorney's claim that he lacks capacity. Again, that flows from amendment No. 159 and acts as a safeguard against the notice of capacity. As I will explain when we deal with that amendment, a notification that the donor has once lacked capacity could prejudice the assumption of functional capacity. I have talked about that previously.

We do not want to encourage people to take a less than thorough approach to that functional decision-specific test of capacity. The new clause works against the presumption of capacity that runs through the Bill. In considering the amendments it is important to remember the principles that we discussed on clause 1 and remember the ''best interests'' principle that underpins the clause and the Bill. I ask the hon. Member to withdraw his amendment.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I apologise for intervening right at the end of the Minister's speech, but I want to be absolutely confident that he has dealt with my remarks—which were probably confused—about EPAs and LPAs. I particularly wanted to know how financial institutions deal should with LPAs. It would be useful if the Minister could put his views on the record, not least because banking institutions presented with LPAs that have been registered but not triggered must be able to satisfy themselves that they should be acting on instructions issued by a donee.

David Lammy (Labour, Tottenham)

We shall come later to amendments on retrospective behaviour and EPAs. If I may, I shall deal with those matters then.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to the Minister for dealing in detail with this important group of amendments, but it would still be useful to hear a little more about the subject that I raised in my intervention. Clarity is important.

I wish to refer to several matters. First is the question of how conflicts between different donees might be resolved. The hon. Member for Daventry asked whether the matter would ultimately go to the Court of Protection, but I am not certain whether that was finally clarified. I am sure that, through further amendments, we could get an answer on the record;

but going to court would be the logical route if such matters had not been specified in an LPA. I am certainly given confidence by what the Minister said about consultation, as set out in clause 4(6), being a key part of the way in which best interests work, and about the need for such consultation to be wide.

I come back to the question of monitoring, which concerns me more. There are two aspects to it. The first is monitoring how the legislation is implemented. I understand that research was commissioned as part of the process of rolling out and implementing the Scottish legislation. Is it the Government's and the Department's intention to commission such research to satisfy themselves that their good intentions are being fulfilled?

Next, there is the question of monitoring the LPAs themselves. It is not sufficient that the system should be founded on the need for someone to blow the whistle to trigger the powers needed to safeguard an individual's interests. We can wrap a whole series of protections round the individual, but those protections are paper-thin unless someone says that something has gone wrong and complains to the Office of the Public Guardian.

David Lammy (Labour, Tottenham)

The hon. Gentleman will understand that although an attorney has a fiduciary duty that is important in law, other professionals such as doctors and teachers also have fiduciary duties. There are no spot checks on the professional undertakings of the latter. Why should an attorney be treated differently?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

We are not talking of attorneys in respect of financial matters only. We are talking about attorneys in respect of welfare, and of a different order of authority and decision making. We are talking about a person who had the capacity at the time to assign responsibilities to someone else. However, the legislation has no mechanism to allow an individual to satisfy himself that he is not on the protection of vulnerable adults list. Indeed, the hon. Member for Daventry said that when the Joint Committee considered the lasting powers of attorney it received some very worrying evidence from Denzil Lush, the Master of the Court of Protection, which indicated that under the current system, as many as 10 to 15 per cent. of cases involving EPAs involve financial abuse.

It appears that there is already a degree of abuse in the system. Given the level of abuse identified by the Master of the Court of Protection, it is incumbent on us to satisfy ourselves that the safeguards are real and that they can be checked to ensure that they are working. I ask the Minister to reflect further on that point. This would not be about checking every individual and every decision, but about people understanding that there was a possibility that their actions would be questioned, and that they would be open to challenge. That does not seem unreasonable in the context of protecting the rights of people who lack capacity.

Tim Boswell (Conservative, Daventry)

For the purposes of the discussion, may I float the idea that there ought to be, through the Office of the Public Guardian, some kind of system whereby people could ring a hotline and ask the public guardian to investigate something of which they were vaguely aware and in which, perhaps, they did not have a close interest? As with benefit fraud, under such a system somebody official could look into the matter, on their own initiative as it were, to establish whether further action was required.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Again, that is an interesting and attractive proposition. My anxiety is that on one hand I wish to make sure that the safeguards for the individual are robust and real, but on the other I do not wish to provide tools for the vexatious. I understand the Government's dilemma regarding that balance.

David Lammy (Labour, Tottenham)

Such a line already exists, and is available. However, I emphasise that making an LPA is a matter of choice. People have made that decision. Furthermore, we do not want people to be put off making LPAs. Many people—neighbours, social services employees, family members, concerned individuals—could challenge or bring matters to the attention of the public guardian if there was a problem. Once that had happened, there would be a whole course of actions, as I outlined, that would give the hon. Gentleman the assurance that he wants.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I shall not prolong the debate further. I have heard what the Minister has said and I want to reflect further on the points that he has made. I hope that he too will continue to do so. I remain concerned, but I am only too happy to be reassured. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment No. 165, in

clause 9, page 5, line 23, leave out from 'particular' to end of line and insert

'sections 1 to 4 (the principles and best interests).'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following amendments:

No. 143, in

clause 16, page 9, line 24, leave out from 'particular' to end of line and insert

'to sections 1 to 4 (the principles and best interests).'.

No. 105, in

clause 20, page 12, leave out line 14 and insert

'sections 1 to 4 (the principles and best interests).'.

No. 156, in

schedule 4, page 50, line 10, at end insert

'this Act, other than sections 9 to 14 apply, in particular the attorney in subject to sections 1 to 4.'.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

These amendments are about a simple point, and I shall speak to them very briefly. They would apply the principles of the Bill in clauses 1 to 4 to deputies, lasting powers of attorney and enduring powers of attorney. Clause 9 refers specifically to clause 4—the best interests test—but not to those principles at the beginning of the Bill.

We were told in the Joint Committee and in the Government's response that the Government had accepted the idea that there should be a clearly stated set of principles at the beginning of the Bill. It seems strange that those are not constantly referred back to within the architecture of the Bill. Clause 9 refers specifically only to clause 4, which raises the question whether clause 4 takes precedence over the principles. My aim in tabling the amendments was to establish that clauses 1 to 4 ought to be read as a group, and that the duties in them should be the duties that apply in discharging responsibilities under LPAs, deputies and in respect of EPAs.

I conclude by asking the Minister about EPAs. I can understand that applying retrospectively a duty to act in accordance with the principles of the Bill may be seen as unfair to those who have already registered and have a live EPA, but in the time that it will take the Bill to pass through all stages in both Houses, gain Royal Assent and be implemented—perhaps a couple of years—a whole host of further EPAs will be registered. People should be on notice that EPAs registered after the Bill receives Royal Assent should be expected to comply with the new higher standard that the Bill attempts to set. I hope that the Government are amenable to that, because, it would not really be applying retrospection, merely starting the clock from the point at which Royal Assent is given and new EPAs are registered.

David Lammy (Labour, Tottenham)

I understand and sympathise with what the hon. Gentleman is trying to achieve. His proposal is very much in line with the overall spirit of the Bill, with its emphasis on the principles of best interests and minimum intervention, and its insistence on a functional approach to capacity. We put those principles up front in the Bill, and want them to apply to all acts done for all people who lack capacity.

The Court of Protection, attorneys and deputies are all subject to those principles, and must have regard not only to best interests but to other things. Under clause 9(4), the authority conferred by a lasting power of attorney is subject to the ''provisions of this Act''. That means the Act in its entirety, which does refer to best interests, but not to the exclusion of other principles. That is because the principle of best interests is the guiding principle of the Bill, and all decisions made and acts done by the Court of Protection, LPAs and deputies must be made and done in the best interests of the person who lacks capacity. I am sympathetic to the hon. Gentleman's intentions, but I assure him that the references to the ''provisions of this Act'' in clauses 9, 16 and 20, are to underpin the principle that the Act must be considered in its entirety. That was indicated in our earlier discussions.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Will the Minister consider an amendment that would simply delete all the words after ''and'' in wording such as that in clause 9(4)(a), thus making it clear that powers are subject to the ''provisions of this Act''? If clause 1, which is described in the explanatory notes as setting out

''the key principles applying to decisions''

does not need to be mentioned in this part of the Bill, why is it necessary to mention clause 4 explicitly?

David Lammy (Labour, Tottenham)

I am surprised that the hon. Gentleman made that intervention. Even though he was not here last week, he will of course have read the Hansard report of Committee proceedings, and will therefore know that we have constantly returned to the subject of best interests. That is why clause 4 is explicitly mentioned: to guarantee all the subjective considerations that underpin that clause. Of course the rest of the act is important. That is why the balance is configured as it is under clause 9(4), for example. That balance is the right one.

Tim Boswell (Conservative, Daventry)

It would help the Committee if the Minister confirmed that in relation to EPAs, the best interests principle is already applicable under common law.

David Lammy (Labour, Tottenham)

That is right. The hon. Gentleman will know that we are laying that out in this Bill for the first time, as regards LPAs.

As for amendment No. 156, schedule 4 makes provision for EPAs that are in existence at the commencement of the Act. It basically allows EPAs executed before the commencement of the Act to continue. The plan is to allow them to wither on the vine over time. The LPA is the new way, but the Bill would not extinguish the EPAs that people have taken out, under which they have important obligations.

The hon. Members for Sutton and Cheam and for Chesterfield (Paul Holmes) propose to bring existing EPAs within the framework of the Bill. They would like schedule 4 to be amended to make EPAs subject to clauses 1 to 4 and so, of course, subject to the principle of best interests. As the hon. Member for Daventry said, EPAs are already subject to best interests under common law.

Ann Winterton (Conservative, Congleton)

On a point of clarification, best interests are being mentioned frequently, in connection with both EPAs and the proposed LPAs. Can the Minister confirm whether the interests of the life and death of the patient are included under common law? They certainly are not included in what the Government are proposing.

David Lammy (Labour, Tottenham)

I am afraid that I am not following the hon. Lady. We had a lengthy discussion about life and death, and I thought that I made it very clear that best interests is key to that assessment. I disagree slightly with the hon. Lady on the issue of life and death. I have talked about best interests, case-by-case analysis and what allows people to make a determination on those matters. She will know that under EPAs, health decisions cannot be made; that is the current context. Under EPAs, only financial decisions can be made.

EPAs used prior to the loss of capacity do not have to be registered, and we do not know how many of them exist. That is why this legislation is so important. People who have executed EPAs in the past have a legitimate expectation that they will be able to use the EPA in future. Therefore we do not consider it right to change the rules on EPAs without telling people of the

change. However, without knowing who has made an EPA, it would be impossible to contact them about the change, even if we wanted to. That is why schedule 4(1)(1) says that for EPAs, clause 1 does not apply.

We cannot retrospectively apply the principles to existing EPAs. There cannot be a legal requirement for people to act on best interests if they do not know about that requirement; that goes against all legal authority and advice. However, although the principles of the Bill will not formally apply to EPAs, all attorneys currently operating under an EPA still have duties, which include fiduciary duties towards the donor. Those existing duties are not that different from best interests in the financial setting. All attorneys must act with due care and diligence and must not harm the donor.

Without going into too much legalese, I can say that much of the law on this matter has developed over a long time. It relates definitely to the law of agency, which has been with us for hundreds of years. There is much case law on the relationship between a donor and a donee, and the relevant obligations.

We shall, as the hon. Member for Sutton and Cheam has already urged us to, promote the principles of the Bill and good practice, and we shall encourage people to take up LPAs. I hope that I have explained why we cannot take a retrospective approach to EPAs.

As for LPAs and banks, an attorney can act whether or not the donor lacks capacity on money matters only. That has always been so. I gave the example of people going abroad and allowing a child to act on their behalf. A donor with capacity can revoke that power at any time. For that reason banks need not be concerned. They have not brought the issue to the attention of the Department, so I do not see a problem in that regard. I ask the hon. Gentleman to withdraw the amendment.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister just made a helpful point about donors and donees and the circumstances in which a bank can feel satisfied that it is acting in good faith should a donee come along saying, ''I have a power of attorney that has been given to me to act in this matter,'' even if the relevant person does not lack capacity. However, that response goes only so far to deal with the concern that I raised earlier: the bank still might be concerned about circumstances in which the person has lacked capacity. The point that has been made to me is that under the existing system, the fact that an EPA has been registered is a signal that the person has lost capacity. I am still not clear in my mind—as I am, I think, demonstrating—that there is an adequate safeguard in the system. I shall probably return to the matter later. I might write to the Minister to see whether I can express my argument in a letter and obtain a response.

To return to the principles of the Bill, the explanatory notes say of clause 1:

''This sets out key principles applying to decisions and actions carried out under the Mental Capacity Bill.''

It then sets out the various principles enshrined in the Bill. We were told when we began our deliberations on the Bill that the pre-eminent test under the Bill, or the pre-eminent principle, was the presumption of capacity—in other words, if a person is capable of making their own decision, no one has the right to do it for them. Only if someone does not have that capacity to make a particular decision, or any decision, can someone else exercise the power to make a decision in that person's best interest. Yet in the debates last Thursday I was left with the impression—

Alan Hurst (Labour, Braintree)

Order. I really think that the hon. Gentleman should not recollect what happened last Thursday. He should keep his mind on what is happening today.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

On a point of order, Mr. Hurst. May I refer to the record from last Thursday?

Alan Hurst (Labour, Braintree)

The hon. Gentleman is allowed to refer to the record, but not to rehearse what was said.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Thank you for that correction, Mr. Hurst. I was trying to say that it appeared from last Thursday's exchanges that best interests had been elevated above the presumption of capacity. I want it to be made clear that that is not so.

David Lammy (Labour, Tottenham)

I am surprised that the hon. Gentleman made that assessment from reading Hansard, but I can state categorically that that is not the case.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I make that assessment not from reading last Thursday's Hansard, but from the continuation of the debate in the context of the amendments before the Committee. I am concerned that subsection (4) says:

''The authority conferred by a lasting power of attorney is subject to . . . the provisions of this Act and, in particular, section 4 (best interests)''.

My point is that surely those other principles are, if anything, even more important in respect of whether or not an LPA is triggered in the first place. If a person still has capacity, the LPA should not be triggered. That is why I have raised my concerns, which I ask the Minister to consider in winding up.

David Lammy (Labour, Tottenham)

I have already said that someone does not need to lack capacity to make a financial LPA. That is for the individual to decide. People can have capacity but give someone else authority to act on their behalf. The presumption that one must lack capacity to make an LPA is not correct.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

In respect of financial matters I entirely accept what the Minister says. What I query is the extension of LPAs to cover other matters. The presumption in the Bill seems to be that those powers are discharged solely in circumstances where a person lacks capacity. If so, a further safeguard and reassurance would be to state explicitly on the face of the Bill that the principle of a presumption of capacity is one of the factors that the individual needs to take

into account. In other words, if that is a key principle, as the explanatory notes say it is, it should be included in the Bill.

That is the thrust of the argument. The Minister has given a response; I merely say that I still not content with it. I hope that he will continue to consider the matter, because I am sure that that myself and others will wish to return to it. However, I have gone on at too great a length, for which I apologise to the Committee, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 23, in clause 9, page 5, line 25, at end add

'and

(c) any conditions or restrictions subsequently imposed by the Court of Protection'.

I shall be more concise, although the amendment to which we come now has considerable implications. Clause 9 is to be read together with clauses 22 and 23, which relate to the powers of the court in relation to the validity of lasting powers of attorney and their operation. As we noted in previous discussion, ultimately the court can step in if there is a dispute or another need to do so.

At first sight, my amendment seems to be restrictive. Indeed, to refer to the principle, which the Minister helpfully explained, a person should be able to draw up lasting powers of attorney and should be unfettered when they do so, as at that time they have full mental capacity. Broadly, people should not muck about with such powers, but implement them in the best interest of the person concerned. I follow the Minister in that principle. However, it occurred to me when I read the clause alongside the other relevant clauses that the court lacks, or appears to lack, flexibility. The court can decline to register a lasting power of attorney, revoke one, or give directions in respect of decisions—that is in clause 23. It also has powers in respect of record keeping and other accounting for the procedure—the court can authorise gifts, for example. However, the court has no powers to tweak a lasting power of attorney in line with the circumstances that prevail at a given time.

In one sense that is healthy. One does not want the court to upset people's private arrangements without good reason. However, the Minister will know better than I that it is possible in certain cases for the courts to intervene in private law—to set aside testamentary dispositions under will, for example. The purpose of the amendment is not, as it appears on the surface, to be restrictive of the individual, it is to be facilitative of the principle of lasting powers of attorney. It occurs to me—I think that it has also occurred to the hon. Member for Sutton and Cheam, because our amendments would have a similar effect in relation to enduring powers of attorney—that there could be perfectly reasonable cases in which something that had been done in the past might be adaptable to a new purpose or set of circumstances.

To be frank, the individuals involved might have in mind the legal cost of having to tear everything up and go back to square one because circumstances have

changed. If a person has lost capacity or lacks capacity at the time and it is impossible to tear up the instrument, one is confronted with a situation in which a power of attorney has been drawn up which is nearly right, but which contains an element that appears to be defective or inappropriate. The only thing that can be done is to go back to the court for directions and, possibly, the appointment of a deputy. That could be—the Minister can remind the Committee—the person who had been the donee of the power of attorney, but it would be under court-driven powers rather than under the powers of attorney.

The amendment is designed to probe whether it would be possible and sensible to provide for the court powers to tweak—to modify—a lasting power of attorney so that it could continue if circumstances changed. The intention is to reflect, as far as possible, the donor's original position, rather than to take away his decision and replace it with one imposed by the court. Can the Minister respond to that point?

David Lammy (Labour, Tottenham)

For clarification, are we discussing amendment No. 70?

Alan Hurst (Labour, Braintree)

Amendment No. 23.

David Lammy (Labour, Tottenham)

I lost my way, Mr. Hurst: forgive me. The Court of Protection has certain powers in respect of attorneys. They are set out in clauses 22 and 23. It is not for the court to decide what powers to give to an attorney; it is for the person to prescribe what powers he wants the attorney to have. We have had some discussion about that. The amendment would blur the distinction between LPAs and deputies, about which there has been confusion. No doubt, we shall come on to that.

Individual choice is important. We should not attempt to prescribe. If it is shown that an attorney has been abusing his powers, the court can revoke the LPA, because that attorney has not been acting in the person's best interests. We want people to be able to choose and to plan ahead. It is equally important that in the code of practice we set out clear guidance on who can be chosen and the requirements that might need to be met, so that people can get the balance right. We had a lengthy discussion this morning in which I sought to outline the many safeguards.

There is long-standing law in respect of agency and the relationship between a donor and a donee. We are putting this into statute for the first time, but there is a fine balance between choice and state intervention in, or state policing of, that choice. Subject to the restrictions in clause 11, it is up to the donor to decide what powers to confer on the donee. The donor can give the donee as much or as little decision-making power as he likes. The proximity of the Court of Protection is important if things go wrong, but it is right to preserve that essential balance. I should add that the court can require the filing of accounts and other measures in particular circumstances to ensure that the restrictions that underpin that relationship are

correct and appropriate. On that basis, I hope that the hon. Member for Daventry will feel able to withdraw his amendment.

Tim Boswell (Conservative, Daventry)

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.

David Lammy (Labour, Tottenham)

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?

Tim Boswell (Conservative, Daventry)

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

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.

Alan Hurst (Labour, Braintree)

Is the hon. Gentleman withdrawing the amendment, or does he wish to press it?

Tim Boswell (Conservative, Daventry)

If the Minister were prepared to consider the issue further, I would withdraw it.

David Lammy (Labour, Tottenham)

The hon. Gentleman has made his points forcefully and well, and I am willing to consider the amendment.

Tim Boswell (Conservative, Daventry)

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

Tim Boswell (Conservative, Daventry)

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.

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.

David Lammy (Labour, Tottenham)

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

information. I shall speak to parliamentary counsel about the proposal to see whether we can correct the provision.

Tim Boswell (Conservative, Daventry)

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.

Tim Boswell (Conservative, Daventry)

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'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss 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'.

Tim Boswell (Conservative, Daventry)

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

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.

Angela Browning (Conservative, Tiverton and Honiton)

As for the definition of what might be a conflict of interest in such circumstances, would being a beneficiary under a will be a conflict of interest? I can imagine many family circumstances in which that might genuinely prove to be a difficulty.

Tim Boswell (Conservative, Daventry)

Indeed, we will have to consider that point, and no doubt the Minister's briefing does so. My hon. Friend reminds me of the fact that evidence was given to the Select Committee—in which, unlike her, I did not participate—on a legacy that was contingent on the person dying before the age of 60. The family were most assiduous in the run-up to this milestone birthday, but thereafter took no interest in the person at all. That sounds like a jocular point, although this was pretty unpleasant of the family, but we should accept that tensions exist in families and in relation to care and that there will be differences of opinion.

I also suspect that the Minister will want to tell the Committee that there are provisions for dealing with conflicts of interest under existing powers of attorney, which do not extend to care matters. He will also remind the Committee that the attorney must act in the person's best interests. However, there are issues of fraud, perceived transparency and different levels of interest when the attorney represents two conflicting interests and has a duty to two persons that he cannot discharge without a conflict.

I ask the Minister to steer the Committee through this and to give us at least an initial response.

David Lammy (Labour, Tottenham)

Amendment No. 71 would include in the certificate by the prescribed person a statement that in his opinion there is no significant, actual or potential conflict between the interests of the donor and the donee. We must all understand the underlying aim of the amendment and I agree that it is important that the person making the lasting power of attorney is protected from possible abuse. None of us wants people to appoint someone as an attorney without them having given due consideration to whether a conflict of interest exists or might exist in the future.

We also want to ensure that we uphold a person's right to appoint whomever he wants as his attorney. That protects the underlying ethos of the Bill, which is empowerment and personal autonomy. Our role is not to limit that person's choice, but to ensure that safeguards are in place to limit abuse.

Importantly, we put in a place a safeguard that takes effect when the donor makes the LPA. The safeguard is designed to ensure that the donor has the capacity to make and is not being pressured into making that lasting power of attorney.

Tim Boswell (Conservative, Daventry)

The Minister will be aware that amendment No. 34 relates to clause 16 and to deputies, so there are two different situations. He is concentrating on the family situation—I do not object to him doing so—but, for the record, there is another that spills over into the powers of the court in relation to the appointment of deputies and their duties to avoid conflicts of interest.

David Lammy (Labour, Tottenham)

I will come to amendment No. 34 in a moment, but some might say that there are more safeguards with a court and its very serous obligations.

As I said, we put that safeguard in place by ensuring that a certificate is provided by a prescribed person, and although it is not appropriate for a prescribed person to comment on the suitability of the attorney, this person must be satisfied that the donor is acting with capacity and is free from duress.

Of course, as to the code of practice, it is important that in setting out the rules governing that prescribed person we produce secondary legislation—we need to consult stakeholders. Our thinking is that the person in question should be someone who has known the donor for perhaps a minimum of two years; they need not be a professional, although they might be. That would be up to the donor. Guidance might advise the donor to choose someone with whom they come into regular contact.

The relevant person would interview the donor without the presence of the proposed attorney and immediately before the signing of the LPA. That is important and we are open—keen—as to the idea of interested organisations, or indeed hon. Members, assisting us in establishing the role of the prescribed person. It is important that we guarantee that there will be no duress.

Tim Boswell (Conservative, Daventry)

Could the prescribed person—in, say, conducting an interview with the donor—form a view in relation to the donee that a potential conflict of interest arose, and not only rehearse that with the donor but, if the donor persisted in their choice, draw it to the attention of the public guardian, on notice of a potential difficulty, or would that be improper? I do not suggest that the instrument would be invalid; perhaps the public guardian or the court would refuse to register it. Is a process of that kind provided for, as a safeguard?

David Lammy (Labour, Tottenham)

I think that there is a process. The person concerned can of course bring the matter to the attention of the public guardian. However, in such difficult cases a judgment would have to be made about three things: capacity, and the capacity to have appointed the attorney; the ability to make an unwise or an irrational decision, as all of us in this Room are allowed to do—that is part of the underpinning of the Bill; and duress. Duress is something about which the public guardian will be particularly concerned. I do not think that they could become concerned with an unwise decision. They will be very concerned about capacity.

There are gaps between those three things; some cases may require detailed scrutiny. However, the hon. Gentleman is right to suggest that there will be cases calling for such fine judgments. That is why the role of the prescribed person is extremely important.

The donor also has the opportunity to name persons whom he would like to be notified on registration. That is important and in accordance with the general thrust of the Bill—the decisions should not be made in silos or in isolation. Any named person would be able to object to the appointment of an attorney on grounds of suitability. If people were worried, the considerations that the hon. Gentleman is interested in would be brought into play.

There are further restrictions on who can be appointed, including those preventing an individual who has been declared bankrupt from being appointed

as an attorney in relation to someone's property and affairs. After the registration, the court can of course remove an attorney who is shown not to have acted, or not to have been acting, in the person's best interest and, if appropriate, appoint a deputy as a replacement.

Clearly, the best people to be attorneys will, often, be husbands, wives or children. In the majority of those cases, the attorney is likely to be a beneficiary of a will.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee A

Schedule 1 - Lasting powers of attorney: formalities

Alan Hurst (Labour, Braintree)

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'.

David Lammy (Labour, Tottenham)

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

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.

Tim Boswell (Conservative, Daventry)

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.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

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.

(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.

David Lammy (Labour, Tottenham)

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.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

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

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment No. 161, in

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

Alan Hurst (Labour, Braintree)

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

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

' 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.'.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

In our discussions on clause 9 and schedule 1, we dealt with issues such as how LPAs are registered and what can and cannot be included in them. I was attempting then to explore the safeguards. This group of amendments is also about safeguards, but safeguards at the other end of the process rather than safeguards once an LPA has been triggered and the authority granted under it is being exercised by the donee. This group does not propose a safeguarding mechanism through the Office of the Public Guardian. It deals with clause 10 concerns; it aims to ensure that what qualifies a person to act as a donee, and the disqualifications that would bar them from acting as a donee, are drawn slightly wider.

My aim is to address concerns that the Making Decisions Alliance and other organisations have put to me. When the authorities know or reasonably believe that a person has been involved in abuse of adults, a register is now provided for under the Care Standards Act 2000. Individuals are added to it in those circumstances; again, appropriate safeguards apply. These amendments are designed to ensure that if someone is seeking to set up an LPA, they can check whether a person is on the POVA—protection of

vulnerable adults—register. Therefore, people can at least assure themselves that they are covered in that regard when they agree to give over financial or welfare authority at the point at which they start to suffer from some lack of capacity.

Tim Boswell (Conservative, Daventry)

The hon. Gentleman will have anticipated that I am sympathetic to the lines of argument that he is developing. Would not he agree that if there is a concern about confidentiality in connection with the donor of the power of attorney, it might be possible to whitewash this through the agency of a third party—the public guardian, who might be in a position to hold that information and provide some clearance, if required, without allowing primary access to the register?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Given the way in which the amendments are drafted, I have been slightly concerned about whether it would be right for there to be a more open possibility of a much wider range of people having access to the POVA register than is currently envisaged. That issue may be one of the points of rebuttal to this group of amendments, but if it is not I am even happier.

I want the Minister to clarify whether, as the hon. Member for Daventry suggested, there can be some means whereby a person can satisfy themselves, before they appoint a donee, that that person is not on the POVA list, which is there to safeguard vulnerable adults. Surely it would be unfortunate if an individual who may, at some point, foresee the possibility of their becoming a vulnerable adult by dint of losing some capacity to make decisions, could not avail themselves of that information while they have capacity, to ensure that they had that protection at a later stage. That also applies to court-appointed deputies: the court could satisfy itself not just about their financial propriety and the fact that they were not bankrupt, but that they had been checked against the POVA register.

Amendment No. 163 poses the other question. What if a person appoints a donee, who has had a POVA check and is fine when the lasting power of attorney is registered, but at the point at which the donor loses capacity it transpires that the donee has subsequently been registered on the POVA list? What further safeguard arises at that stage? The amendment is intended to explore the Government's attitude to that question. There should be provision in the Bill to ensure that if a donee were placed on the POVA register later, and the donor, having lost capacity and not in a position to be aware of that change, the appointment could be revoked. This group of amendments is about such safeguards.

I will not speak to the amendments tabled by the hon. Member for Daventry, although they attempt to deal with some of the issues affecting qualifications and disqualifications, and I have some sympathy for many of them.

Tim Boswell (Conservative, Daventry)

I begin by endorsing the interests and arguments developed by the hon. Member for Sutton and Cheam (Mr. Burstow) on the care side. With neat complementarity, I shall introduce some similar queries on the financial probity side. The Bill would

exclude a bankrupt and amendment No. 24 would provide for a widening of that category to include a person who has been found to be unfit to hold a directorship under the Companies Acts, or has an unspent conviction for fraud or misfeasance.

Amendment No. 25 is prospective and says that if such a person were to develop those disqualifications, they would automatically be disqualified at that point. The Minister may wish to respond and say that bankruptcy is a formal position and having had a conviction or having been deemed unfit to hold a directorship are both historical occurrences. However, it would be obvious to all Committee members that if some rogue was not allowed to hold a directorship, the last thing that most of us would want is for them to hold an attorneyship for a vulnerable person who might lack capacity, particularly if they had stumbled into that position. The Minister must answer that.

Amendment No. 26 is slightly unusual and uncharacteristically imaginative. It is an attempt to create a framework to deal with a problem using a concept that I do not think exists now. We all know, anecdotally if not otherwise, that there are persons on the loose who prey on vulnerable people with ''a modest competence'', as the Victorians used to say, and who seek to divert it to their pocket. We will not go back to the remarks made by the Master of the Court of Protection about the number of EPAs that are misdirected, although that is a serious matter. However, it would not take a deep perusal of the tabloid press to find cases in which there was at least a suspicion that a professional person, be it a doctor or solicitor, had preyed on elderly ladies, got into their affections and managed through his professional skills to encourage them to execute a power of attorney.

The Minister will say, rightly, that there are safeguards in the process, both in the registration with the public guardian and in the fact that there is already a filter, in that a named person has to certify that there is no undue influence at the time that the deed of attorney is created. Nevertheless, the problem has undoubtedly arisen in the past. The purpose of amendment No. 26 is to set a self-limiting boundary, which we could call either an anti-fraud provision or an anti-overstretch provision, by referring to any person who exercises attorneyship for more than 10 persons. The Minister will no doubt remind us that a financial company or legal person cannot exercise care attorneyships, but it is difficult to understand why any person should need attorneyship over more than 10 people, certainly within the context of family relationships of close affinity. Of course, the amendment does not preclude that; it just says that it would be necessary to get the approval and validation of the Court of Protection for holding more than 10 attorneyships. The amendment is an attempt to avoid the amassing of potentially lucrative attorneyships, and their diversion to a particular individual. I assure the Minister that I am not looking for trouble; I am merely anxious to anticipate ways in which such circumstances might arise, and to cut them off.

My final point is equally applicable, although in a different way, to the amendments moved by the hon. Member for Sutton and Cheam. There is a need for the public guardian to have a proper database, which would enable him to cross-reference and pick up aberrant trends or surprising developments that might give rise to concern. If I set myself up as T.E. Boswell Financial Associates and concluded nine attorneyships with different people, I hope that that would be logged somewhere on the public guardian's computer. No doubt there would have to be fuzzy matching, so that if I turned up next time as T. Boswell Financial Associates, someone would pick up that it was the same bloke trying a different tack. We need to look into that. As the hon. Gentleman said, some security-sensitive and confidential information is available on published registers for specific reasons relating to the most sensitive areas of care. Those matters are every bit as important as the financial matters about which I have been talking.

The Committee needs to realise that fraudsters do not operate in a particular area because they happen to specialise in it; they operate in it because they sense weaknesses in the system that they can exploit. If those weaknesses or loopholes are closed, they move to another area. A few years ago, I had some ministerial responsibility for and knowledge of student loan fraud. The way to tackle that problem was to establish a good student loan allocation system that was robust in filtering applications, and—once data protection rules had been cleared—to acquire the ability to match across to other activities so that one could find significant addresses that were presenting in completely separate contexts, such as the benefits system, as the fraudsters moved about the field looking for the areas that they could best exploit. This is a complicated subject and it is important that the Minister share his thoughts on it.

I was motivated to table my amendments by a feeling that persons in the position that they describe—those found guilty of offences, or found unfit to be directors of a public company—ought not to be allowed to become donees. The Minister may say that we need as much freedom as possible, but it is arguable that we need such a filter. It is certain that the public guardian cannot act as a passive recipient of information, without any ability to move through the system. If we are to leave him as the main defender of the interests of vulnerable people, we must make absolutely sure that whenever possible—it will not always be possible—potential sources of mischief are cut off at source, before they have developed into a serious problem.

I need say no more, except to put the matter into context. I hope that the Committee does not feel—I do not, and I do not think that the hon. Member for Sutton and Cheam does—that the majority of people offering themselves to be donees of attorneyship will be in anything like the position described in the amendments. There is no suggestion that such cases are universal, or even the norm. Most will be genuine family members or friends who wish to do their best

for the vulnerable person. We need to safeguard the position of those people by ensuring that they do not get tarred with the same brush as those who have entirely different motivations, who have besmirched the principle of attorneyship in the past, and, incidentally, who have breached all their legal obligations under the common law. Such people should not be allowed to continue to do so. We are legislating, and we want to get that right. We look forward to the Minister's response.

David Lammy (Labour, Tottenham)

The Government understand the principles behind the amendments: to ensure that we protect vulnerable adults who find themselves at risk of coercion or undue influence from people with deeply undesirable motives.

I shall deal first with amendments Nos. 24 and 25, tabled by the hon. Member for Daventry, which are designed to prevent those found unfit to hold a directorship or those convicted of fraud or misfeasance from being appointed or continuing to act as attorneys in respect of property and affairs. I understand the hon. Gentleman's wish to protect the unsuspecting or naive donor from abuse, and he is right that attorneys of property and affairs will be in a position of trust. However, as I explained this morning, there are sufficient safeguards in the Bill.

I do not want to repeat myself too much, but it is important to refer back to best interests and to page 71 of the draft code of practice, which states that if the donee has behaved, is behaving or proposes to behave, in a way that is contrary to the ''best interests'' of the donee, the court can revoke the donee's power. I assure the hon. Gentleman that the Bill provides that those adjudged bankrupt after becoming an attorney will have their powers to act on the person's property and affairs revoked. That is found in clause 33.

Tim Boswell (Conservative, Daventry)

The Minister will not be surprised to learn that I anticipated a reply along such lines. There is an issue about whether persons judged unfit are more or less worthy than persons who may have become bankrupt for reasons that have not been wholly within their control. None the less, will he reflect on a situation in which a person wishes to appoint an attorney who happens to be in one of those categories, but is unaware of that fact at the time of the intended appointment? If that were to come to the notice of the public guardian, who might have a register of such persons that would not necessarily be publicly available or available to the donor of the power, would there be any means whereby the public guardian could properly draw the attention of the potential donor to the situation? Will there be an amber light? Otherwise, I might find someone with whom I got on very well, who seemed to be competent and was plausible, and I might conclude an attorneyship with that person—

Alan Hurst (Labour, Braintree)

Order. The hon. Gentleman is making an intervention, not a speech.

David Lammy (Labour, Tottenham)

In response to the hon. Gentleman, I must say that donors will have to take account of possible changes of circumstance. If important

information were not available to the public guardian at first call, he might take an interest. I say ''might'', but that might allow him to determine whether he felt that the information had a material effect on the original decision.

Tim Boswell (Conservative, Daventry)

I am conscious of your stricture, Mr. Hurst, but I am still concerned about what, in shorthand, I will call a prior situation or conviction of which the person who wants to draw up the power of attorney might not be aware. Is there any means by which the public guardian could draw his attention to it before the matter was concluded, notwithstanding what might happen further down the track?

David Lammy (Labour, Tottenham)

I am not sure that I follow the hon. Gentleman. Is he saying that the public guardian should somehow act as a watchdog and draw such matters to the attention of the person who presumably at the time had capacity and made the request? I frame my response as I did earlier: if circumstances or certain facts came to light, the public guardian would be right to consider them and might think that they were material in making a decision. I am informed that the Master of the Court of Protection has allowed a son to continue as his mother's attorney, even though the son was in prison for a serious offence. He did so because he believed the evidence before him, which was that the son loved his mother and his mother trusted him. The fact that he had committed an offence did not mean that he was not able to act in his mother's best interests. Again, we come back to a case-by-case judgment and to the evidence that is before the Court of Protection at the time, or before the public guardian acting in the role of the guardian of public interests. There are difficult judgments to make, but it is right to leave them to those who are in a position to make them. I have stressed the safeguards in the Bill.

As for amendment No. 26, people often choose solicitors and accountants as financial LPAs. Sometimes, the best solicitors and accountants might have more than 10 attorneyships. I am also informed that the Public Guardianship Office can already check and search its database for logical attorneyships under the Bill. Given the proximity of solicitors and accountants, they, too, have their professional bodies and complaint mechanisms, so there are several ways in which such matters can come to light. The hon. Member for Daventry will recall that, unfitness to act as a company director might arise from a failure to understand complex companies legislation. It follows that a person who has been made personally bankrupt cannot handle someone else's personal finances, but that is not always the position of a company director who has been declared unfit, when that might have occurred for any number of reasons. It is right to rule out bankrupts, but the determination of someone's fitness must be made by the person who is giving the power of attorney.

Amendments Nos. 160 to 163 would prevent an LPA from being created if the proposed attorney were on the protection of vulnerable adults list. I appreciate the reasons behind these amendments, but I am

advised that that is not possible. The POVA list is designed to ensure that people included on it are not recruited as care providers.

The Bill provides sufficient safeguards. Clause 22(3) provides that the Court of Protection may revoke an LPA if it is satisfied that the attorney

''has behaved, or is behaving, in a way that contravenes his authority or is not in P's''—

the donor's—

''best interests''.

I have also talked about how concerns can be raised with the Office of the Public Guardian under clause 56.

The hon. Member for Sutton and Cheam has proposed a number of amendments affecting deputies, which would also involve the POVA list. It is simply not possible to use the list in that way unless fundamental changes are made to the Care Standards Act 2000, and if we wanted to make those changes, we would have to go down that avenue.

Clause 16(4) makes it clear that

''(a) a decision by the court is to be preferred to the appointment of a deputy to make a decision, and

(b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.''

In other words, it should be a restricted power. It is important to bear that in mind with regard to the role of the deputy. We should not lose sight of the fact that under clause 56 the public guardian is required to maintain a register of orders appointing deputies and supervising deputies appointed by the court. We believe that those safeguards are sufficient.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I want to be clear about the implications of what the Minister is saying. Is he saying that someone could be appointed as a donee under an LPA to make decisions about a person's welfare, but if they were also employed by an agency, they could not be the employee providing domiciliary care if they were on the POVA list? Someone could make decisions about the provision of a care package to someone and the release of resources and what the package might involve, but they could not provide that care themselves. Am I right to say that someone on the POVA list can make the decisions, but cannot provide the hands-on care? That is not a consistent position for the Government to take.

David Lammy (Labour, Tottenham)

Clearly, under the POVA list arrangements and the Care Standards Act, there is a particular set of rules and provisions that would have an effect, someone on the list would not be in the care situation. However, under the Bill, the necessary determinants are the court's judgment on the evidence before it and the fitness and capacity of a particular person to make those health and welfare decisions.

It is important to stress that the Government envisage that there will be very few deputies acting in this area. In the light of the case profile currently before the court, it is likely that we are talking about difficult decisions made in a handful of cases every year, in which a judge would appoint a deputy to make those determinations. I can understand the hon. Gentleman's concern, but, as I have said to him, his proposals would require fundamental changes,

because the POVA list applies only in the limited area of care standards. On that basis, the Government believe that the amendments are unnecessary.

I must go back to much that we have said before. Financial deputies will also be supervised in much the same way as receivers are at present—by requiring them to file accounts, by restrictions on their powers, and by visits by Court of Protection visitors. That supervision will be front-loaded, in that checks will be made when someone applies to become a deputy, to ensure that only suitable people are appointed and that the supervision is at an appropriate level. The court also has the power to require a deputy to give security to the public guardian if it so wishes.

I understand the intent behind the hon. Gentleman's amendments, but I think that protection already exists. We ought not to conflate two very separate pieces of legislation, and the purpose of care standards legislation is quite confined. On that basis, I hope that the hon. Gentleman will feel able to withdraw the amendment.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I served on the Standing Committee that dealt with the Care Standards Act 2000, and I understand that it had different purposes in mind, but fundamental to its purpose was the protection of vulnerable adults. At least in part, surely the purpose of our considering this Bill is to determine how we ensure that those who lack capacity—to take particular decisions, or any decisions—are properly protected. In respect of the clause and the means by which someone is appointed as a donee, I remain concerned that it seems to have been beyond the bounds of possibility for parliamentary draftspeople to find suitable words to enable the POVA list to be used, as it is within the Care Standards Act.

David Lammy (Labour, Tottenham)

I ought to emphasise that the attorney in this regard is there, most often, to give consent to treatment, not to care for the person; nurses and doctors will be caring for the person in a care home or a hospital. The hon. Gentleman slightly conflates those matters. The attorney is there to act as that extra legal safeguard; their role is about consent, not about caring for the person in the care standards situation, as the hon. Gentleman suggested.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I accept that the two things may be running in parallel. They are remarkably close; indeed, in terms of what I am trying to address they are sufficiently close to allow an argument that the Minister ought to consider a little further. In order to ensure that appropriate safeguards are in place, a person who still has capacity and is making an important decision about who they wish to act as their donee—for example, on welfare matters—should be able to know that the donee is not on the POVA list. The POVA list does not deal only with those who provide hands-on care, but with those who are responsible for the management of services for vulnerable adults. We are talking about people who in

some respects will be taking decisions about the welfare of people in their charge. That is why there are grounds for pressing the Minister a little further.

David Lammy (Labour, Tottenham)

None of my comments should prejudice the Bichard report, recommendation 19 of which said that the Government should introduce new arrangements across the board to protect children and vulnerable adults, and that a register could provide more information relevant to an individual's suitability in a particular respect. We are considering whether LPAs and deputies would come under the scope of such a register, notwithstanding my point about the consent role as opposed to the care role. However, as I said, I am sympathetic to the hon. Gentleman's general point.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

That is probably as far as we are likely to get on the issue today. That is helpful; I shall take what the Minister says about the amendments as important comfort. There are issues that we would like to return to, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 ordered to stand part of the Bill.

Clause 11 - Lasting powers of attorney: restrictions

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment No. 167, in

clause 11, page 6, line 31, leave out from 'to make' to the end of line 35 and insert

'a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss amendment No. 168, in

clause 11, page 6, line 43, at end add—

'(8) Where a lasting power of attorney authorises the donee (or, if more than one, any of them) to make decisions about P's property and affairs the authority does not extend to making a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter, unless it has been specified on the instrument that the donee may make such decisions whilst P has the capacity to make decisions about P's property and affairs.'.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The amendments are intended to ensure that proxy decision making in respect of lasting powers of attorney are firmly anchored in the principles of clause 1 and that, in discharging his responsibility, a donee keeps in mind that he is on shifting sands as regards the issue of capacity, as that may change from one decision to another. It must be asked whether a person has capacity. That always has to be at the forefront of a person's considerations when they are acting as a proxy decision maker.

A person with an LPA ought to ask, ''Does the person for whom I am about to act have the capacity to make this decision?'' Amendments Nos. 167 and 168 would put the fact that that obligation exists in clear terms by linking clause 11 back to clause 1, and by clearly stipulating how those principles should work in respect of both clause 11 and the restrictions that

should apply to a lasting power of attorney. Given all that has been said so far about the pre-eminence of presumption of capacity, I hope that he Minister can give us some reassurance on the subject.

David Lammy (Labour, Tottenham)

I understand the desire behind the amendments. It is, of course, important to emphasise that incapacitated people should be given every help and encouragement to make their own decisions; that is part of the underlying ethos of the Bill, and I have said much about it already.

Clause 11(6)(a) already makes it clear that an attorney's authority to make decisions about someone's personal welfare extends only to circumstances in which the person lacks capacity. That paragraph was added in response to recommendations made by the Joint Committee.

Amendment No. 168 would limit an attorney's ability to make property and affairs decisions on the donor's behalf to times when the donor lacks capacity, unless the donor states otherwise on the LPA document. However, many people find it helpful to appoint an attorney to deal with their property and affairs while they still have capacity—a matter that we discussed this morning.

I have said how EPAs work at present. The difference under the Bill is that LPAs will have to be registered before they can be used for the first time, so the tracking process will be a lot better. A donor who wishes to limit the authority of the attorney to times when the donor lacks capacity can already do so, because the Bill makes provision for the attorney to specify any restrictions or conditions in the LPA document. The hon. Member for Daventry mentioned the roles of professionals earlier. In drawing up that document, many people will call on solicitors and professionals, who also have a duty of care to ensure that such things are done in the right way. On that basis, I hope that the hon. Gentleman will feel able to withdraw the amendment.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I thank the Minister for his response. He says that existing custom and practice and the consultations that already happen with lawyers and other experts in drafting an EPA will carry on with LPAs, and that that should provide sufficient safeguards. If I felt that that was the case, I would not have tabled the amendments. I feel that it would be appropriate to go further than that and to be clearer about what the duties might be.

I was interested in what the Minister said about a person being able to stipulate that they wish the LPA to be exercised only if they lacked capacity. That poses the question that, inarticulately, I tried to pose this morning: when would that be stipulated, and how would a third party—the bank, or another person—know that capacity had been lost? Without that clarity in the system, I suspect that there will be occasions on which other parties will feel unable to act on the instructions of a donee. That dilemma is still to be resolved. The amendments are not about resolving that issue, but about making things clear on the issue of capacity. I am grateful for the Minister's response.

Again, we will probably find an appropriate time to come back to the issue. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 ordered to stand part of the Bill.

Clause 12 - Scope of lasting powers of attorney: gifts

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 27, in

clause 12, page 7, line 4, after 'gifts', insert

'(including the sale of assets at a discount or at less than money's worth.'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following amendments: No. 210, in

clause 12, page 7, line 10, at end insert

(c) for any purpose an amount expressly provided for in the power of attorney,'.

No. 211, in

clause 12, page 7, line 11, after 'if', insert

'(in the case of a gift made subject to the power in paragraph (a) or (b) above).'.

Tim Boswell (Conservative, Daventry)

The provision is designed to curtail the powers of an attorney to make gifts under an LPA. There is, perhaps, an understanding, consistent with Committee members' arguments, that there need to be safeguards in that direction. It is one thing to be generous with one's own money, but another to be generous with somebody else's, particularly when there is an overriding duty to act in that person's best interests.

I shall speak to the amendments and their implications in turn. Amendment No. 27 is small and designed to obtain Government confirmation on one kind of situation. It is by no means uncommon within families to decide to reduce the price of an asset—for example, a house owned by a family member—instead of charging the full price. Perhaps that would be done for a young person who could afford some of the cost, but not the whole cost.

There is also the separate issue of cases in which the attorney himself might be in receipt of property. That might be a perfectly proper transaction, at arm's length and at full market value. However, the situation would be difficult if the attorney manipulated things so as to receive a property or asset at less than market value. I am sure that the Minister can imagine lots of other situations in which, instead of charging the full market price, a reduction was envisaged.

I do not seek to open wider issues about the taxation of retirement equity release schemes, for example. We could spend the whole day on such matters, which would not be appropriate. I just say to the Minister that if he is making provision for gifts, he ought to pause on whether it is desirable to consider assets sold at a discount or at less than market value. That is the purpose of the amendment.

The numerical order of amendments Nos. 210 and 211suggests that they are afterthoughts, tabled after I revisited the matter on the advice of a colleague. There

is a potential difficulty with the clause. I understand that the Minister seeks to confine gifts made by the attorney, who is acting on behalf of the person without capacity, to what might be termed normal acts of charity and ordinary, decent family relations. The person, when he had capacity, would have wished to make provision for birthday presents to his spouse or child or a friend and would have wished to subscribe modest, regular amounts to a charity of which he was fond. That is not an issue. However, there is apparently a bar at that point.

The Minister, who has been so liberal and non-interventionist in his constraints on the use of the power of attorney, is saying, ''Thus far, and no further.'' He will rightly draw my attention to the fact that the explanatory notes signpost us to clause 23(4), under which the court could give permission for a more substantial gift. The example in relation to the clause is that if the older person has substantial assets, there might be a good reason in terms of tax planning for making a larger gift. Surely that would be the case if the person were asset rich, but no longer able to administer their assets, and somebody with a lasting power of attorney to administer them could say that it made little sense for the person to hang on to them; it would be more tax-efficient, and, perhaps, useful to other family members, if they were to divest themselves of them. There would then be the safeguard in going to the Court of Protection.

That is not the only scenario that could arise. I can imagine one in which two siblings—brothers—were sadly seriously injured and lost mental capacity as a result of their injuries in a car accident. If one had substantial life insurance, or insurance against permanent disability, and the other had none, the one would be in receipt of a large sum from the insurance company—assuming the claim were legitimate, which I suspect it would be—and the other would receive nothing.

An attorney—perhaps the joint attorney for both—might say that provision should be made for both, or that if the younger brother survived the death of the older, it would be a comfort to know that the assets could be spread around, because it was probable that both brothers, if they had a good relationship, would want that to happen. This is not simply about tax planning and fat cats. There might be various scenarios, large and small.

There is provision for the assets to be the subject of an application to the Court of Protection for permission to divest them. I do not say that that procedure is unreasonable, but it will be expensive and may delay things for a time. It would not be possible to get a decision quickly, although a quick decision on some assets would be desirable, particularly in respect of a house or property and perhaps in relation to stocks and shares. Amendment No. 211 would merely facilitate or define a way to do that.

The exceptions to clause 2(10) provide that if the person drawing up the power of attorney against an eventual loss of mental capacity wished to specify that

the attorney should have the power to make gifts—and if they gave a definite set of instructions to the attorney, as they might on other matters, such as their health care or financial arrangements—and if they said that they wanted to make a gift, it is reasonable in principle that they can do that without reference to the court.

The donee of the power of attorney would still have an obligation to consider the person's best interests and not give away assets when it became dangerous to do so, regardless of the instructions they might have received. Nevertheless, that would be a sensible prior indication of something that somebody might want to do and the Minister should consider it.

Amendment No. 27 is designed simply to get the Minister to define what is and is not a gift. Amendment No. 210, which is accompanied by amendment No. 211, is intended to get him to give the flexibility that he has given in other parts of the Bill to the issue of gifts. I hope he will consider them seriously.

David Lammy (Labour, Tottenham)

Clause 12 allows the donor to authorise his chosen attorney to dispose of his property by making gifts. However, subsection (2) limits that to customary occasions, birthdays, marriages and religious festivals, where presents are traditionally given, or

''to any charity to whom the donor made or might have been expected to make gifts''.

That broadly reflects the restrictions in the Enduring Powers of Attorney Act 1985.

Subsection (2) also provides that when an attorney makes gifts he must have

''regard to all the circumstances and, in particular, the size of the donor's estate.''

Any gift he makes must not be unreasonable in relation to those factors, even though the donor can place any conditions or restrictions on the making of such gifts when he draws up the LPA. Clearly, regardless of the passage of time and changing circumstances, an attorney must have regard to what the donor can reasonably afford.

I suspect that the amendments tabled by the hon. Member for Daventry are intended to ensure that the donor could authorise the making of gifts in such a way that he could make practical arrangements to provide for any dependants or a spouse or an important event years into the future.However, there is a problem with them that makes them undesirable. Amendment No. 27 proposes that the references to gifts in clause 12(1) should include

''the sale of assets at a discount or at less than money's worth.''

Clause 12(1) provides that a property and affairs LPA does not authorise an attorney to make gifts of the donor's property

''except to the extent permitted by subsection (2).''

Amendment No. 27 would lead to the following odd situation under clause 12: attorneys could sell assets at a discount provided that they did so on customary occasions or to a charity. From what the hon. Gentleman said, I am sure that that is not his intention.

As the Bill is drafted, selling assets at a discount could be grounds for the Court of Protection to revoke an LPA under clause 22(3)(b). The court could revoke

an LPA if it was satisfied that the attorney had misbehaved or was behaving in a way that was not ''in P's best interests.'' I say ''could'' with regard to clause 22(3)(b) because, as the hon. Gentleman has mentioned, there may be occasions on which that might in P's best interests—for example, if the person lacking capacity needed his house to be sold and there was a timing issue so that it was thought necessary to sell the property urgently even though it was undervalued.

Many of us in this Committee Room might also decide to accept less money for our property than we could get if we left it on the market a little longer, because we needed the cash. An attorney might need to make such decisions in the person's best interests.

Tim Boswell (Conservative, Daventry)

The Minister is trying to assist us. Does he agree that where there is a genuine attempt to release an asset, perhaps ahead of time, or to make a gift, whether or not of a customary nature, one of the critical elements of such action may be to document what is being done and the extent of the implied discount or other circumstances and, if necessary, to seek the advice of the public guardian about what is contemplated, through some form of pre-clearance before the action is taken?

David Lammy (Labour, Tottenham)

We return to our discussion about choice, although I accept the underlying theme of the hon. Gentleman's argument. In relation to amendments Nos. 210 and 211, he talked about two siblings in a car accident and an attorney acting for both of them. An attorney has a duty to do what is in the best interests of the donor. Clearly, spending money on behalf of the donor is easy; spending money on someone else is more problematic, and—subject to the provisions on minor gifts that are dealt with in clause 12—people should usually go to the court in such circumstances.

Amendment No. 210 is undesirable because it would not be wise for the donor to be able to authorise the making of gifts for just any purpose—the authority would be too wide, and the attorney would face conflicts between his duties and responsibilities. Under clause 23(4), the court has the power to authorise a more substantial gift if it is satisfied that that would be in the donor's best interests. Amendment No. 211 is also undesirable, because it would remove the requirement that the attorney have regard to the circumstances and size of the donor's estate when making gifts. For example, if an older person has substantial assets, tax planning might be a reason for making gifts; the size of that person's estate would therefore be highly relevant.

It is important that we have probed such an important area, but as the provision is presently framed in combination with clause 23(2) and (4), the balance is about right. On that basis, I hope that the hon. Gentleman will withdraw his amendment.

Tim Boswell (Conservative, Daventry)

The Minister has given reasonably satisfactory assurances, which is one of the purposes of our exchange but I wish to place on record my abiding

concern that, whereas the aim of the Bill is to use the Court of Protection as a proper last resort and to refer a limited number of cases—perhaps 200 to 300 a year—to it, additional recourse to it will be required in respect of gifts. I doubt that the Minister's estimates will be exceeded, as I suppose that, at least in theory, he has taken such cases into account. However, the procedure is likely to be expensive, and of a High Court type. I am also worried that the applications will be expensive and belated.

I need to reflect on whether the assurances that the Minister gave are sufficient, or whether some other means of meeting our concerns, or a halfway house, can be found. For the time being, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 ordered to stand part of the Bill.

Clause 13 - Revocation of lasting powers of attorney etc.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Will the Minister say a little more, by way of amplification, about the sorts of things that might be prescribed under clause 13(6)(a), so that they will be more clearly on the record? The explanatory notes give no examples of matters that would deemed to be events such as

''the disclaimer of the appointment by the donee in accordance with such requirements as may be prescribed'',

and so on. It would be useful if the Minister elaborated. I ask about it because of something he said in response to my earlier amendments regarding POVA list checks for donees. He said that he did not want to prejudice action on the Bichard recommendations. I want to find out whether, in the context of these or subsequent regulation-making powers, it might prove possible to include in the legislation through regulations the ability to use the wider system of safeguarding vulnerable adults.

First, therefore, will the Minister give some examples of what might be prescribed? Secondly, will he say where in clause 13, or perhaps in a subsequent clause, he hopes it will be possible without further primary legislation to give effect to the Bichard recommendations, if the Government are minded to do so at a later stage?

David Lammy (Labour, Tottenham)

I cannot do that. I said that the Government are considering the Bichard recommendations across the piece. The hon. Gentleman will understand that those important and serious recommendations come out of the high-profile Soham murder case, and it is right that we to consider them properly. I will not pre-empt that consideration now; it would be wrong to do so.

I am informed that the requirement under clause 13(6)(a) is a formal requirement to notify the donor in writing, and that is all. There is nothing behind it. I shall be happy to write to the hon. Gentleman with more detail, if he wishes.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

That would be helpful. I am sure that Committee members will be interested in the letter. I had no intention of tempting the Minister into prejudging a matter that is being considered across Government. I was attempting to clarify whether the Bill contains a mechanism whereby the Government could give effect to its decisions on those recommendations. Perhaps we will get further clarification at a later stage.

Clause 13 ordered to stand part of the Bill.

Clauses 14 and 15 ordered to stand part of the Bill.

Clause 16 - Powers to make decisions and appoint deputies: general

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment No. 140, in clause 16, page 9, line 17, after 'affairs', insert 'or

(c) P's claims for and payments of state benefits administered by the relevant authorities.'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following amendments: No. 141, in clause 18, page 10, line 17, leave out 'and affairs' and insert 'affairs and state benefits'.

No. 142, in clause 18, page 10, line 34, at end insert—

'(i) the making of claims, receiving and spending payments of state benefits, and reporting relevant changes of circumstances in relation to claims for state benefits.'.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Clause 16 deals with the jurisdiction of the Court of Protection in respect of substitute decision making, and so on. In this group of amendments, I am attempting to address the part of the proxy decision-making system that will remain outside the scope of this measure—the appointee system operated by the Department for Work and Pensions, which at any time affects about 200,000 people who under the arrangements operated by the Department do not have the opportunity to make a decision themselves or to have a say in the choice of their appointee. Such decisions are made for them. That is against the spirit and the letter of the Bill.

The Bill provides an opportunity to regularise that position and to set a much clearer framework of safeguards around the way in which benefits are administered for those who lack capacity. It is rather puzzling that that issue has not been addressed in the context of the Bill. I put my hand up and admit that it is not a matter that I can recall the Joint Committee examining in any detail, but after its considerations, the matter caught the attention of those who are campaigning for this legislation to make its way on to the statute book.

There are undoubtedly concerns that there is considerable scope for the abuse of the system of appointees in respect of the benefits system. In future, there will be much more scope to abuse a person's financial resources that are provided by a benefit than their financial resources that come from other sources and are managed under LPAs. The amendment is designed to include those matters in the Bill's ambit.

Only last week, the Under-Secretary of State for Work and Pensions, the hon. Member for Liverpool, Garston (Maria Eagle), who is Minister with responsibility for disabled people, addressed the AGM of the all-party disability group. I had the opportunity to ask what her Department had done to review those matters and what discussions, to her knowledge, had taken place with the Department for Constitutional Affairs about them. To be fair to her, she said that she wanted to get back to us on that. I hope that we can get some clarity today about what discussions have taken place. It would be a missed opportunity not to ensure that the 200,000 people that are currently subject to the system that we are discussing are brought within the protections that the Bill will give them when it becomes an Act.

Tim Boswell (Conservative, Daventry)

I congratulate the hon. Member for Sutton and Cheam on having worked that point in at this stage. On previous occasions during our consideration of the Bill our minds have operated in parallel. That is not necessarily a misfortune, particularly when the result is a pincer movement on the Government that might require them to do something about a problem.

I too have been concerned about appointment—indeed, I tabled three questions on the subject for the Department for Work and Pensions. Two of them were answered on 16 September and the last on 19 October, and they have left me with growing concern. It is clear that that Department does not have full centralised knowledge of the number of people under the appointment system, because its answer related to the number of appointees for pension credit and income support alone. I can confirm that at 174,000 in the case of pension credit and 118,000 in that of income support, the figures appear to be rather larger than the hon. Gentleman suggested. However, a raft of other state benefits could be involved.

I got an answer to my question about the conditions for an appointee. They are interviewed and required to sign a declaration. The answer stated:

''If an appointee fails to meet their obligations, the Secretary of State may, in addition to any further action that might be appropriate, revoke the appointment.''—[Official Report, 16 September 2004; Vol. 424, c. 1749W.]

However, to the follow-up question, pursuant to the one that had just been answered answered, on the information relating to how many appointments had been revoked or subjected to further action, the Minister replied in the following terms:

''The information is not collated centrally and can be provided only at disproportionate cost.''—[Official Report, 19 October 2004; Vol. 425, c. 634W.]

That suggests a system that is not under consideration and that the Department does not have a handle on the situation.

I give notice to the Committee that I have tabled further amendments—although the hon. Member for Sutton and Cheam will not have seen them yet and they do not exactly smite the eye in their transparency, because they are rather obliquely worded. They are about the operation of the appointment system. The

Department for Work and Pensions—and its predecessor Departments—which has operated that system for many years, since the inception of the national insurance legislation has not got central management of it. The criteria for its operation are quite inadequate. The nature of the appointments and the duties imposed—including the question whether best interests are invoked, for example—are not clear, and management and enforcement of the system is not very good. In no sense do I blame the Minister, or expect a full answer at this stage, but if we are in the business of meeting the needs of those who lack mental capacity, that problem should be worked out.

I should have added that the figures that I gave are the collective figures. The Department tells me that it cannot split the cases in which there is a mental capacity issue from other cases in which an appointment is made. We will not resolve the difficulty this afternoon, but I hope that the Minister will confer with his colleagues, and that a viable understanding or protocol is hammered out between the Departments before the Bill completes its passage through Parliament.

David Lammy (Labour, Tottenham)

I say to the hon. Members for Sutton and Cheam and for Daventry that if someone makes an EPA or an LPA the Department for Work and Pensions does not need to find an appointee; the attorney will do that.

I understand why the hon. Member for Sutton and Cheam brought the matter to the Committee's attention. There are more than 300,000 appointees for state benefits—nearly 175,000 for pensions and nearly 120,000 for income support. The public guardian's office manages about 18,000 receivers and deputies. It would be a huge change to take over the work of the 300,000 appointees. We have spoken on several occasions with DWP officials and there is continuing dialogue. They are committed to reviewing their regulations and guidance in light of the Bill. I undertake to meet with the relevant Minister in DWP to continue to take the issue forward.

Tim Boswell (Conservative, Daventry)

First, I acknowledge my pleasure in the fact that the Minister has made that clear. Secondly, I invite him to do his best to get back to us, perhaps on Report, on the outcome of those discussions, because we are talking about an area of genuine concern—which, by implication, the Minister shares.

David Lammy (Labour, Tottenham)

The DWP is undertaking to deal with the matter in the light of the Bill, but it is separate from the Bill. The public guardian and DWP appointees work in different contexts. I undertake to meet ministerial colleagues to take the issue forward, as officials in my Department have been doing, but I cannot undertake to come back on Report, because I cannot say when Government business will move forward—the hon. Gentleman will know that, given his time as a Minister. However, I accept the intention behind the amendments, although it is right to suggest strongly that the matter is out of the scope of the Bill. On that basis, I hope that the hon. Gentleman will withdraw the amendment.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Out of scope, yet if a person has the wisdom, wit and wherewithal to have a lasting power of attorney, they will have the full benefit of the Bill in respect of the protection of the actions of their donee, who is acting as an appointee. There is an issue about the extent to which a person's means will determine whether they are covered by the appointee system, which is dealt with through the DWP, and another about whether a person who does not have the means will be able to have an LPA.

Later, I should like to consider whether affordability is relevant to fees. I understand the administrative difficulties, which could be huge if the Office of the Public Guardian were to take on that work, lock, stock and barrel. Clearly, there would need to be an arrangement to manage the transition, but the Government's stated intention is that people should, at an early stage of their lives, seriously consider including lasting powers of attorney as part of the process of making a will, more and more people might well choose to stipulate who may act as a donee. They might well be advised by their solicitors to include within a lasting power of attorney a stipulation that the person acting on financial matters should act as an appointee in respect of the work and pensions system. On the basis of the Bill and the protections that it gives, I am inclined to advise constituents to go down that road, rather than use the other system.

As we have heard from the hon. Member for Daventry, the evidence from answers supplied by the Department for Work and Pensions tends to suggest that the system is long overdue for some close scrutiny. I hope that in his discussions with that Department and his ministerial colleagues, the Minister will explore whether the work can be done and whether it will be possible to mirror some of the safeguards in this legislation, if it is not possible to encompass them fully within it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 ordered to stand part of the Bill.

Clause 17 - Section 16 powers: personal welfare

Tim Boswell (Conservative, Daventry)

I beg to move amendment No. 29, in clause 17, page 10, line 8, at end insert—

'(aa) where P is to travel on any journey exceeding 10 miles'.

I shall be brief. The idea of tabling the amendment arose when I saw a list and thought that I ought to establish whether it was sufficiently comprehensive. The list already encompasses most of the strategic decisions that might be taken by a deputy on a person's personal welfare. I claim no credit for the precise wording or for the figure given, but my purpose in tabling the amendment was to rehearse and to invite the Minister to consider whether the decision to allow, encourage or require P to travel would be strategic.

The way in which the amendment is drafted might seem unduly trivial. One might put in 100 miles rather than 10, for example, or one might make reference to the frequency of journeys or otherwise. However,

persons lacking mental capacity might feel uncomfortable with change and might not want to be distressed by unnecessary upheaval. The decision on whether they are to travel, possibly for treatment or other care or to go to an inquiry or other procedure, could therefore be intrusive and distressing for them.

I wonder whether the idea of setting some limitations on the power of the deputy to permit or require travel might be appropriate. I do not feel very strongly about the issue, but I think that the Minister should at least consider it and give the Committee a response.

David Lammy (Labour, Tottenham)

We thought it would be helpful if the Bill included some examples of the sort of personal welfare decisions that the court or deputy might need to make. When such issues have arisen in the past, they have been dealt with by the High Court. The examples given in clause 17(1) of residence, contact and health care are the types of matter that come under the High Court's jurisdiction. The amendment would add another category to that list.

I appreciate that it might be useful to list a range of matters in which deputies or the court might make decisions. However, I am not convinced of the merits of setting down one particular matter—in this case, travel. It is true that, for some journeys, a deputy or the court may need to decide whether it is in the person's best interests to travel a particular distance—for example, there might be disagreement on whether he or she should stay with a relative in another part of the country. However, journeys of 10 miles or more might be frequent and routine for some, especially for those living in rural areas. It would be over-bureaucratic if a court or a deputy had always to be involved in such situations.

We indicate in clause 17(1) the important matters that, over the years, have come before the High Court. I do not want to go much beyond that. We ought to leave it to the code of practice to deal with that question. I therefore hope that the hon. Gentleman will not feel it necessary to press the point further.

Tim Boswell (Conservative, Daventry)

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.

Column Number: 188

Property and affairs: supplemental provisions

David Lammy (Labour, Tottenham)

I beg to move amendment No. 115, in schedule 2, page 39, line 31, at end insert

', and

(d) must be sealed with the official seal of the Court of Protection'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss Government amendment No. 111.

David Lammy (Labour, Tottenham)

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.

Clause 19 - Appointment of deputies

Tim Boswell (Conservative, Daventry)

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)'.

Alan Hurst (Labour, Braintree)

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'.

Tim Boswell (Conservative, Daventry)

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.

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, implicit—the Minister will no doubt explain to the Committee—that 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 court—who may not be relatives, and will probably not be, typically—have 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.

David Lammy (Labour, Tottenham)

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.

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.

Tim Boswell (Conservative, Daventry)

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.

Clause 20 - Restrictions on deputies

Tim Boswell (Conservative, Daventry)

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:

''Nothing in section 16(5) or 17 permits a deputy to be given power—

(a) to prohibit a named person from having contact with P''.

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

necessary for a deputy—although not necessarily a deputy; it could be somebody who is a carer under clause 5—to 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 necessary—to protect the person without mental capacity—for 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.

David Lammy (Labour, Tottenham)

A key principle governing deputies is that they cannot do more than the person could do if he or she had capacity. That is why it would be odd to give a deputy the power to direct someone responsible for a person's health care to allow a different person to take over that responsibility. That is something that the hon. Gentleman and I cannot do, so it would be odd to give that power to a deputy. In a sense, only the court has that power, so it is right that only the court can do this for people who lack capacity.

On the question of prohibiting a named person from having contact with the person lacking capacity, again only the court has the power to stop people having contact with others. Of course, if a deputy has doubts about someone's conduct, he is entitled to ask the Court of Protection to make a judgment, or to apply for a non-molestation order as a litigation friend. Clause 28 is there to provide protection for people who lack capacity and to protect the underlying ethos of the Bill, which is one of empowerment, personal autonomy and minimal supervision. Extending the powers in the Bill in the way suggested by the amendment would therefore be unhelpful.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Allowing me to intervene might allow the Minister to blow his nose, which might also be helpful.

I want to be clear about the Minister's argument against the amendment tabled by the hon. Member for Daventry with respect to how it would affect the power to prohibit a named person. Clearly, with regard to matters covered by clause 17, someone who has lasting power of attorney can take such decisions, so will the Minister explain a little further why it was not believed to be appropriate for a court to be able to give someone within its power as a deputy the right to be able to say that certain persons cannot have access?

David Lammy (Labour, Tottenham)

The court can prohibit or direct people, but an individual cannot. It is right that that scrutiny is very definitely within the ambit of the court. That is part of the court's broad powers to put its orders into effect, so in appointing a deputy, it is the court order that, in a sense, falls within its ambit. The deputy can take away the person who lacks capacity, but they cannot control the third party. That would run into other areas of both common and criminal law.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Presumably, however, the Bill envisages that a donee can in some way act to affect a third party in some way. How can a deputy be deemed not to be able to act in that way, but a donee can?

David Lammy (Labour, Tottenham)

We debated this earlier. The hon. Gentleman might recall that I reminded him that the deputy acting on health and welfare most often provides consent. I wanted to ensure that he did not believe that such a deputy was providing care in the way he was suggesting.

I entirely understand the hon. Gentleman's point, but he is not making that subtle distinction. Therefore, the deputy is not instructing the third party. He is working in tandem with the third party, authorised by the court and subject to the restrictions, or at least the directions, that the court has given him.

Tim Boswell (Conservative, Daventry)

It is important that we tease out such matters. My reading of the Bill is that clauses 17 and 20 taken together relate only to deputies, not to attorneys. Clause 17, which glosses clause 16 powers, enables the deputy to decide what contact, if any, he is to have with the specified person. In other words, such matters centre on the person and whether he is to be introduced to someone. However, under clause 20 the restriction—the subject of the amendment—would be to prohibit a named person from having contact with P, which ties in the named person, not P himself. In one case, P is looking outwards to other persons whom he might encounter. In the other case, it will prohibit anyone other than the court from forbidding an individual from contacting P on his own initiative. Is that correct?

David Lammy (Labour, Tottenham)

The hon. Gentleman's explanation is helpful, but clause 17 definitely relates to the powers of the court, not the LPAs. That is not inconsistent with what I have previously outlined. The point is that the donee or deputy does what the person who lacks capacity could otherwise do, but we cannot prohibit people from doing things to us—or, directly, doctors. I am sure that we will come on to such matters when we discuss the next amendment and the relationship between someone who has that power but who in practice has to work in conjunction with other professionals, who will usually be doctors or social services personnel.

Tim Boswell (Conservative, Daventry)

I am grateful to the Minister for giving way again. I want him to understand that my motive in tabling the amendment was to make sure that we had not by accident lost the deputy any common law rights of intervention in an urgent situation. For

example, if someone were loose with a knife in the Committee Room, we would not want a deputy to be inhibited from intervening, because we would all have a common law right to try to prevent someone else from being injured. Perhaps the Minister can deal with that issue, too.

David Lammy (Labour, Tottenham)

In such circumstances, other areas of law would kick in, without prejudice to the Bill. I assure the hon. Gentleman that whether I was a deputy or not, I would intervene if someone took out a knife. I ask him to withdraw the amendment.

Tim Boswell (Conservative, Daventry)

The Minister has sought to answer my question. We have exposed our potential concern. We have received some useful clarification, bearing in mind the fact that such matters are driven by the courts, and that if someone is acting of behalf of another person, they should not have a power beyond that of the person concerned. The principle is sound. It has been worth rehearsing it, and we might need to reflect further on what has been said to see whether we can pick up on anything later. For the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment No. 103, in

clause 20, page 12, line 9, leave out from 'P' to end of line 10.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the amendment No. 104, in

clause 20, page 12, line 11, leave out subsection (6).

Paul Burstow (Liberal Democrat, Sutton and Cheam)

This group of amendments, and the discussion that I hope that we will have about it, follows on from the exchange that we have just had about whether it is right for a court to be able to subcontract to a deputy a matter of such importance as the decisions concerning consent to the withdrawal or withholding of treatment. The amendments indicate clearly that those are not matters that a court should delegate to an individual; it should be impossible to envisage any circumstances in which it would be appropriate for the court to abrogate its responsibility to see those matters determined in court. I would be interested to know whether the Minister thinks that there are any such circumstances. The intention of the amendments is to remove the last part of clause 20(5) and to delete subsection (6), which follows it.

The Minister said just now that it was right for the court to retain within its ambit the ability to scrutinise decisions with regard to access by P. If that is so, I find it hard to understand and square the idea that it might be right for the court not to be in a position in which it, and it alone, can scrutinise the fundamental issues of life and the withdrawal of treatment—so I look forward to the Minister's doing that for us. The purpose of the amendment is to ensure that we are clear about where we are, and where the Bill will take us. I hope that the Minister can give us some clarification and reassurance.

Tim Boswell (Conservative, Daventry)

I endorse the comments that have been made about the need for clarification. The important point about life-sustaining treatment, or its withdrawal, is the one expressed in the definition. It is not an issue to which one can return if somebody's life has come to an end, or been terminated, because the treatment has been withdrawn. It is difficult to see that that would be an inappropriate matter for the court, particularly where there might be an argument, or a perceived argument, about any potential difficulty in the position of the deputy, who might have other interests as well, and might be seeking to reconcile them. I do not want to open the issue of euthanasia—we will want to give further consideration later to advance decisions and the way in which they will operate—but the issue is very serious.

Perhaps the Minister has concerns about overload, and whether many decisions would be referred to the court on a precautionary basis. I am, at least partially, sensitive to that. However, there should be no doubt about the seriousness of these issues. Talking of well-considered judgments, it is worth recording for the Committee the fact that there have been a number of recent cases in which courts have decided life and death issues—the Wyatt judgment comes to mind, but it is not the only one. In a way, because of the sensitivity of the judgments, they have succeeded broadly, if not in satisfying, at least in reconciling, the parties to the very difficult situation that has to be met. Any suggestion that that could be subcontracted, even to a sensitive individual, would be unfortunate. That is the nature of our concerns at this stage.

David Lammy (Labour, Tottenham)

Of course I fully understand the concerns of the Committee. Hon. Members are entitled to ask why a deputy should be given such a power, and under what circumstances the situation would arise. I must emphasise that we concluded that it was right to give him the power partly for the reason that the hon. Gentleman indicated—examining the cases that come before the High Court and the difficult determinations that it has to make, and seeing how many times people are required to go to court for that purpose. Let me explain why.

On pages 73 and 74 of the code of practice, hon. Members will see that

''It is expected that the appointment of a deputy to make personal welfare or healthcare decisions is likely to be needed only in the most extreme cases'',

so the provision definitely relates to exceptional circumstances. None the less, the court should be able to provide a deputy with the power to give or refuse consent for life-sustaining treatment. It is important that I explain the reasoning.

Tim Boswell (Conservative, Daventry)

I am not seeking to make the Minister's life more difficult, but confining that to the most exceptional cases raises the question of why it is necessary at all. If he had a resource issue concern about large numbers of cases flooding the Court of Protection—which I trailed to him as a possible problem—I would understand his position. However, if he is saying that the provision would be used only exceptionally, one has to ask why it is necessary.

David Lammy (Labour, Tottenham)

If the hon. Gentleman will forgive me, I should like to make some progress.

As hon. Members know, and as I have indicated previously, we expect the vast majority of deputies to be financial deputies appointed by the court. Health and welfare deputies will be appointed very rarely, because in most cases the framework for decision making in health and welfare is clearly set out and formal powers will not be necessary. However, in some cases—for example, where there are disputes among family members about the appropriate course of treatment for a person lacking capacity—a deputy's appointment would be in the person's best interests.

Let me make it clear that in such circumstances the court is unlikely to appoint as a deputy someone who is unknown to the person. There is a general feeling, in scrutinising this area, that people would say, ''Who is this impostor—this person no one knows—who is to be appointed by the court to come in and play such an important role in these important decisions?'' Appointing someone who has no particular insight into the person's wishes, feelings, values or healthcare needs would not be in the person's best interests. The court must appoint a deputy only if that appointment would be in the best interests of the person lacking capacity under clause 16(3).

Why is it appropriate for deputies to have the power to refuse treatment? In some situations it will be appropriate that a deputy has the power to refuse consent to life-sustaining treatment. That will probably happen where there is some dispute. Imagine an adult suffering from a terminal medical condition whose parents disagree with the person's spouse about which treatment options should be accepted or rejected at a particular stage. That happens, albeit rarely. There are a handful of such cases that end up in court when parents disagree with the wife or husband.

When a condition is terminal, all sorts of treatments can be considered to be life-sustaining, from prescribing antibiotics to performing operations. It is sometimes even hard to decide whether a treatment might be life-sustaining. In such cases, where relatives bitterly disagree about the treatment options for a person lacking capacity—

Tim Boswell (Conservative, Daventry)

Will the hon. Gentleman give way?

David Lammy (Labour, Tottenham)

I am not giving way at this point.

In disputes about whether treatment should be accepted or rejected at a particular stage, it would be extremely burdensome for all concerned—but most importantly for the person lacking capacity—if each treatment decision had to be taken to the court for resolution. That could cause delays and unnecessary suffering for the people involved. In such cases, where disputes are ongoing and predictable, the court may see no benefit to anyone in a later return to court, and decide to appoint a suitable relative, carer or friend with express powers. That person would then work together with medical staff.

Let me make this clear: I have given the example of a dispute between a wife and a mum and dad. A court will need to determine who to appoint as the deputy, difficult though that may be. About three to five cases a year fall into that category. In those circumstances, the alternative is to require a person to come back to court for every treatment decision along the line.

Tim Boswell (Conservative, Daventry)

I am genuinely grateful to the Minister for giving way; my question is solely on this point. I had already anticipated that he might say something about conditions. As I understand it, if one might refer back to recent judgments such as the Wyatt case, which I mentioned, the court does not give the absolute view that no further treatment should take place, but says that certain treatments should not be initiated if a prior condition arises. I seek to assist the Minister by suggesting that presumably, the role of the deputy would be to say, ''This prior condition has now arisen, and within the general framework set out by the court, I decide that no further treatment is required because of the condition,'' so the overall direction will be from the court. The deputy's role may be to show that the condition has been satisfied on behalf of the court. Is that the sort of thing that the Minister has in mind?

David Lammy (Labour, Tottenham)

It is. That is why clause 20(5) and (6) provide that the deputy may refuse consent to life-sustaining treatment on behalf of the person concerned in cases where the court is satisfied that exceptional circumstances exist and where the court has expressly conferred that authority. That will occur in very rare circumstances.

There are examples from case law of the High Court hearing disputes between families—for example, between a wife and a mother, or between the children by a former marriage and a new husband—in which the courts have had to take a view on how best to determine a person's best interests, particularly at the latter stages of life. Again at this point in the Committee, we come to consider those difficult decisions; judgment calls do have to be made.

The hon. Gentleman will know that there are some forms of cancer with which, at the end of life, there are difficult judgments about whether one continues with a course of chemotherapy. There may be two relatives in entire disagreement, and the court will have to adjudicate on that. It will have to give the role of deputy to one of the relatives so that the decisions can be made.

In any case, under clause 16(4)(b), the court is always obligated to give the deputy powers that are

''as limited in scope and duration as is reasonably practicable in the circumstances.''

That is obviously important. The power to make decisions about life-sustaining treatment is needed only in exceptional circumstances, and very rarely. We are not expecting more than two or three such cases a year. The draft code of practice explains when we expect health care deputies to be used.

I hope that I have been able to reassure hon. Members. I absolutely understand the reasons for tabling the amendments, but for those two or three cases a year, are we to tell the families involved that they must always return to court, given that there can be numerous treatment decisions along a particular clinical pathway?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister has been helpful in putting on record the framework in which the exceptional circumstances arise. If the amendments have done no more than prompt that, it was useful to have tabled them. I am sure that some people will still consider this part of the Bill, unamended, as an area for concern because of what it says and the signals that it gives out, but the Minister has said sufficient to

satisfy me and enable me to withdraw the amendment. I might take advice from outside, but he has given a clear exposition of the circumstances in which the limited power would be used. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 ordered to stand part of the Bill.

Clauses 21 to 23 ordered to stand part of the Bill.

Further consideration adjourned.—[Ms Bridget Prentice.]

Adjourned accordingly at twenty-four minutes to Five o'clock till Thursday 28 October at half-past Nine o'clock.