Clause 8 - Expenditure
Mental Capacity Bill
4:15 pm
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
I beg to move amendment No. 22, in
clause 8, page 4, line 36, at end insert
'and D shall keep appropriate records and receipts to validate any such claim to reimbursement'.
I am conscious of the hour, so I shall be brief. The amendment is part of a sequence of probing amendments designed to enable us to understand how such important clauses will work. There will be other opportunities to discuss powers of attorney and the implications and obligations at a later stage. The Minister will know—indeed, the chairman of the Court of Protection has already made it clear—that there are real worries that people already in fiduciary positions who undertake matters on behalf of other persons may abuse that trust and, sadly, do so from time to time. I appreciate from the explanatory notes and the text of the Bill that the clause is set in the context of necessary acts under clauses 5 and 7. It is not self-evidently about huge expenditure, although over time it could involve significant amounts.
The amendment would provide that some appropriate accounts should be kept. Clearly, if a situation arose in which a financial attorney needed to wash up, that would be a reasonable request to make. The financial attorney would say, ''If you can't provide the receipts, how can we pay you?'' Presumably, there might have to be litigation about such matters. As a matter of good practice if nothing else, some basis of receipts and accounting should be available to provide an audit trail for the expenditure, because by definition, the person involved lacks capacity and needs to be protected.
Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)
When someone has formal control over another person's finances, is a donee, has a lasting power of attorney or is appointed a deputy of the court, that person would be expected to keep records and receipts. Indeed, that person might be asked by the Court of Protection or the public guardian to produce them. In that sense, the amendment is very much on point because there is a formal requirement and understanding. The hon. Gentleman will know that such a provision is not new under an enduring power of attorney; it is the present arrangement.
The hon. Gentleman will also understand that, for of the reasons that he has illustrated so eloquently in the past and because this is a day-to-day Bill that covers so many actions, we must also strike a balance. In some cases, such a requirement in informal settings would be bureaucratic and unnecessary. We have talked a lot, particularly today, about the role of doctors, nurses and formal carers in the social services context of the Bill. We have talked less about brothers, sisters, mothers and fathers, but the hon. Gentleman would be the first to talk about red tape if we required people to save up receipts and so on in that informal setting. It would be an onerous process. That is why I hope that he will withdraw the amendment, although that does not mean that best practice is such circumstances is not desirable.
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
I am almost convinced by the Minister's eloquence—and if not by that, by the hour. We should take away what he said and consider it. Clearly, there is good practice. I confess again that I have not checked with the code to see whether reference is made to such matters. We shall
have much more to say about financial propriety later; in a sense, it is secondary to the issues of life and death that we have spent most of our time on today, and I do not want to put it on the same parity. However, worries remain, and on the whole, they are not about the milk bill. I understand the Minister's point about red tape and de minimis. Equally, it would be difficult for an attorney to pay out for the milk bill without the milk bill receipt being in front of him to prove that the expenditure took place. However, we can now let the
matter rest, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 ordered to stand part of the Bill.
Further consideration adjourned.—[Ms Bridget Prentice.]
Adjourned accordingly at half-past Four o'clock till Tuesday 26 October at half-past Nine o'clock.