Schedule 1 - Lasting powers of attorney: formalities
Mental Capacity Bill
2:30 pm
Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton and Cheam, Liberal Democrat)
I beg to move amendment No. 159, in
schedule 1, page 39, line 11, after 'power', insert—
'(1) Where an instrument authorising a welfare attorney to make decision is used for the first time, the relevant body has a duty to notify the Office of the Public Guardian that the instrument has been used. The relevant body will be the NHS body, or social services authority, where the decision is being made for care or treatment and it is apparent to that body that in relation to a particular matter on a particular occasion the donor lacks the capacity to make the decision and the donee wishes to make it on behalf of the donor.
(2) Where an instrument authorises the donee to make decisions in relation to the donor's property and affairs and if the donor lacks or the donee reasonably believes that the donor lacks the capacity to make a decision in relation to aspects of their property and affairs or in relation to claims and payments of benefits, the donee has a duty to notify the Office of the Public Guardian and the donor that he intends to use the instrument to the Office of the Public Guardian must include a certificate from a prescribed person to the effect that the donor does not at the time of the notification have the capacity to make all decisions in relation to their property and affairs.
(3) Regulations may specify the manner in which the bodies in paragraph 23(1) and the donee in paragraph 23(2) notify the Office of the Public Guardian, and how it is indicated on the instrument that it is now in use.'.
In moving an earlier group of amendments, I inadvertently spoke to this amendment as well. Its intention is to ensure that the process of registering LPAs is not the only point at which the Office of the Public Guardian is aware of their existence; a mechanism should be triggered whereby either a public body or the individual has a responsibility to notify the OPG that they have started to exercise authority under the LPA. I have already heard something of the Minister's response to the idea, but it would be useful if he went a little further and clarified whether the Government might be prepared to entertain it.