Clause 19 - Appointment of deputies
Mental Capacity Bill
4:00 pm
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.