Schedule 1 - Lasting powers of attorney: formalities
Mental Capacity Bill
11:15 am
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.