Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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).'.

Mr Alan Hurst (Braintree, Labour)

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.'.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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?

Mr Alan Hurst (Braintree, Labour)

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

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

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.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

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

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

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.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

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.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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?

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

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.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

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?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

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.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

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?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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.

Mr Alan Hurst (Braintree, Labour)

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

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

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.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

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?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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?

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

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.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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).'.

Mr Alan Hurst (Braintree, Labour)

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.'.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

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

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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 (Congleton, Conservative)

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.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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—

Mr Alan Hurst (Braintree, Labour)

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.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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

Mr Alan Hurst (Braintree, Labour)

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

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

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.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

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?

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

For clarification, are we discussing amendment No. 70?

Mr Alan Hurst (Braintree, Labour)

Amendment No. 23.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

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.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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?

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

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.

Mr Alan Hurst (Braintree, Labour)

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

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

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

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

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

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

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.