Schedule 1 - Lasting powers of attorney: formalities
Mental Capacity Bill
2:30 pm
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.