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

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.

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

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.

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

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.

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

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'.

Mr Alan Hurst (Braintree, Labour)

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'.

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

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.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

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.

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

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.

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

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.

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

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.

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

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.

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

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?

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

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.