Mr Alan Hurst (Braintree, Labour)

I remind the Committee that with this we are taking 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 David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

It is clear that in most cases the attorney is likely to be a beneficiary of the will, as the hon. Member for Tiverton and Honiton (Mrs. Browning) suggested. Is it therefore right for us to say that this person—a trusted partner, a loved one—cannot be appointed as an attorney because a prescribed person, who perhaps does not know the donor, thinks that there is a conflict of interest? I do not think it would be right. We must allow people, as competent adults, to choose the attorney that they want and trust. The Bill ensures that the attorney must act in the person's best interests.

Amendments Nos. 28 and 34 would ensure that any deputy appointed by the court did not have a conflict, or potential conflict, of interest affecting his conduct regarding the affairs of the incapacitated person. I fully understand the underlying aim; it is important that a person who lacks capacity be protected from potential abuse at the hands of the court-appointed deputy.

However, I can reassure the hon. Lady that the best interests principle of the Bill deals with that; it binds both the court and the deputy, and acts as a sufficient safeguard in that respect. It will ensure that the court will not appoint a deputy if it is aware that he has a conflict of interest that might prevent him from acting in the best interests of the person lacking capacity.

Similarly, a deputy must always act in the best interests of the person concerned. Deputies will be supervised by the public guardian, and if he thinks that

a deputy is acting contrary to the best interests of the person concerned, and is acting to further his own interests, to their disadvantage, one would expect the court to act. On that basis, I hope that the hon. Member for Daventry (Mr. Boswell) feels able to withdraw the amendment.

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

I am grateful to the Minister for a responsive, although inevitably interrupted, reply. We have a common objective in avoiding fraud, and any misbehaviour or derogation of the interests of the person concerned. He has explained how that might work. I am particularly reassured in that a prescribed person—a person of a prescribed description or a named person—might be able to review any concerns in advance with the public guardian.

I seek another assurance from the Minister—a nod will do. I want assurance that where a conflict of interest might arise involving a person—perhaps one that was unanticipated at the time of the completion of the instrument—and they were worried about the situation, there would be nothing to stop them seeking the public guardian's advice and guidance about what they might do.

Subject to that—and I think that the Minister is nodding—it seems that there is a filter process at the beginning and the possibility of a feedback in the course of the execution of duties as a donee of an attorneyship. That, together with the best interests test, gets us about as far as we can reasonably go. Subject only to reflection—at least at this stage—I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Lammy: I beg to move,

That the Order of the Committee of 19th October 2004 be amended by—

(a) the substitution in paragraph (3) of ''Clauses 19 to 23'' for ''Clauses 19 to 27'', and

(b) the insertion after paragraph (3) of—

''(3A) the proceedings on Clauses 24 to 27 shall (so far as not previously concluded) be brought to a conclusion at 11.25 a.m. on Thursday 28th October;''.

The programme resolution was amended in that way earlier today in the Programming Sub-Committee, to ensure that we reach the advance decision part of the Bill on Thursday morning.

Question put and agreed to.