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

I beg to move amendment No. 32, in clause 19, page 11, line 31, after 'reports' insert

'(whether relating to matters of P's personal welfare or the conduct of P's property and affairs, as the case may be)'.

Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to discuss amendment No. 33, in clause 19, page 11, line 32, at end add—

'(c) to account to the Public Guardian for any loss incurred as a result of his negligence in the conduct of P's financial affairs or the misappropriation of P's property'.

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

Briefly, we continue with the task of seeking reassurance from the Government about the safeguards for the welfare and property of the person without mental capacity. Amendment No. 32 provides that reports could refer either to personal welfare or to conduct of the person's affairs and property matters by the deputy, as might be appropriate. I suppose that some cases might include both; those might even be the typical cases.

One of the benefits of the Bill, on which I have increasingly reflected, is an integration of the care and welfare provisions with the financial provisions. I think that that is realistic even if, on occasion, should matters come to court it would be necessary to consider them according to the particular facts and concerns, and using the right battery of expertise. It would be entirely proper to call for reports on those matters and inappropriate to call for reports on others if it was not thought necessary for those to be covered at that time.

Amendment No. 33 relates to accounting to the public guardian for any loss incurred as a result of negligence in the conduct of P's financial affairs, or the misappropriation of P's property. The Minister has reminded us many times, rightly, of the importance of the best interest clause; that is not an issue between us. However, it is, I think, implicit—the Minister will no doubt explain to the Committee—that within the operation of the enduring powers of attorney it is possible to call for an account of what is to be done and, if necessary, to issue proceedings if someone has been up to no good. It would be useful if he explained how that would transfer forward into the powers in question and assured us that that will happen.

We are all aware that we are considering people who are very vulnerable. I have tried to explain to the Committee, as have other hon. Members, that it is not typical to assume that it is always rapacious relatives who seek advantage who are involved in such matters. Deputies appointed by the court—who may not be relatives, and will probably not be, typically—have a duty under whatever their profession may be, but also have a general duty to act properly in the interest of the person. I would be very surprised if the Minister could not give us satisfactory assurances on this matter.

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

The amendments suggest what reports we should deal with. Amendment No. 32 specifies the financial affairs or personal welfare of the person lacking capacity, as appropriate. As the hon. Gentleman knows, the court will be able to appoint deputies to look after the financial affairs of the person lacking capacity or, indeed, his personal welfare, or both. Reports will therefore have to cover both financial and welfare matters.

I entirely understand why the hon. Gentleman has tabled the amendment. Up to now, receivers have dealt only with financial matters, so they have submitted accounts. Personal welfare deputies will need to produce a different kind of report, but it will be for the court to decide what those reports should cover.

If a deputy is appointed solely to manage the finances of someone who lacks capacity, he is likely to be asked to submit accounts, as receivers are at present required to do under the Mental Health Act 1983. A personal welfare deputy is likely to be asked to report on what decisions he has had to make for the person lacking capacity. The court will then be able to decide if the deputyship is still necessary. If a deputy is responsible for both personal welfare and finance, he may be asked to submit reports on both, separately or together. I am confident that that can be left to the discretion of the judges at the Court of Protection.

Amendment No. 33, which deals with the possible content of financial reports, would require the deputy to account to the public guardian if the person lacking capacity incurred loss as a result of the deputy's negligence or misappropriation.

I fully understand and support the hon. Gentleman's desire to protect those who lack capacity from unscrupulous or inept deputies, but we can achieve what he wants without the amendment. The court will be able to require the deputy to report to the public guardian on any relevant matter. If there is a question whether the deputy has been negligent or dishonest, he can be asked to submit accounts, or the public guardian can investigate following representations by individuals. If the deputy is found to have abused his position, the order can be discharged. The court can also safeguard the interests by way of security. Therefore, there are a number of ways that the court can have scrutiny in this area.

On that basis, I hope the hon. Gentleman feels able to withdraw the amendment.

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

In the light of those assurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 ordered to stand part of the Bill.