Clause 9 - Lasting powers of attorney
Mental Capacity Bill
9:30 am
Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and 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''The 1985 Act will be repealed on implementation of the Bill, but the legal effect of EPAs''—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.