Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I beg to move amendment No. 161, in

clause 10, page 5, line 31, after 'who', insert '(a)'.

Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to discuss the following amendments: No. 24, in

clause 10, page 5, line 31, after 'bankrupt', insert

' or who has been found an unfit person to hold a directorship under the Companies Acts, or who has an unspent conviction for fraud or misfeasance'.

No. 25, in

clause 10, page 5, line 32, at end insert

'or if so appointed and subsequently to become bankrupt, unfit or convicted of fraud or misfeasance'.

No. 26, in

clause 10, page 5, line 32, at end insert

'provided that no individual may be appointed to more than 10 such attorneyships without the express permission of the Court of Protection, and that any such attorneyships executed without such permission after the first ten shall be invalid'.

No. 160, in

clause 10, page 5, line 32, after 'affairs', insert—

'(b) an individual whose name is registered on a list under section 81 of the Care Standards Act 2000, shall not be appointed as a donee of a lasting power of attorney, unless the donor has had an opportunity to ascertain whether the proposed donee is included in such a list.'.

No. 144, in

clause 16, page 10, line 4, at end insert—

'(c) is bankrupt or an individual whose name is registered on a list under section 81 Care Standards Act 2000.'.

No. 145, in

clause 19, page 11, line 8, leave out 'without his consent' and insert—

'(a) without his consent,

(b) if he is bankrupt, or

(c) if he is a person whose name is on a list under section 81 Care Standards Act 2000.'.

No. 162, in

clause 13, page 7, line 42, at end insert—

'(e) subject to subsection 12, the inclusion of the donee on a list under section 81 of the Care Standards Act 2000'.

No. 163, in

clause 13, page 8, line 14, at end add—

'( ) The inclusion of the donee on a list under section 81 of the Care Standards Act 2000 does not terminate his appointment unless the donor has lost the capacity to make a decision on the matter and the donee's inclusion on the list was subsequent to the appointment.'.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

In our discussions on clause 9 and schedule 1, we dealt with issues such as how LPAs are registered and what can and cannot be included in them. I was attempting then to explore the safeguards. This group of amendments is also about safeguards, but safeguards at the other end of the process rather than safeguards once an LPA has been triggered and the authority granted under it is being exercised by the donee. This group does not propose a safeguarding mechanism through the Office of the Public Guardian. It deals with clause 10 concerns; it aims to ensure that what qualifies a person to act as a donee, and the disqualifications that would bar them from acting as a donee, are drawn slightly wider.

My aim is to address concerns that the Making Decisions Alliance and other organisations have put to me. When the authorities know or reasonably believe that a person has been involved in abuse of adults, a register is now provided for under the Care Standards Act 2000. Individuals are added to it in those circumstances; again, appropriate safeguards apply. These amendments are designed to ensure that if someone is seeking to set up an LPA, they can check whether a person is on the POVA—protection of

vulnerable adults—register. Therefore, people can at least assure themselves that they are covered in that regard when they agree to give over financial or welfare authority at the point at which they start to suffer from some lack of capacity.

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

The hon. Gentleman will have anticipated that I am sympathetic to the lines of argument that he is developing. Would not he agree that if there is a concern about confidentiality in connection with the donor of the power of attorney, it might be possible to whitewash this through the agency of a third party—the public guardian, who might be in a position to hold that information and provide some clearance, if required, without allowing primary access to the register?

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

Given the way in which the amendments are drafted, I have been slightly concerned about whether it would be right for there to be a more open possibility of a much wider range of people having access to the POVA register than is currently envisaged. That issue may be one of the points of rebuttal to this group of amendments, but if it is not I am even happier.

I want the Minister to clarify whether, as the hon. Member for Daventry suggested, there can be some means whereby a person can satisfy themselves, before they appoint a donee, that that person is not on the POVA list, which is there to safeguard vulnerable adults. Surely it would be unfortunate if an individual who may, at some point, foresee the possibility of their becoming a vulnerable adult by dint of losing some capacity to make decisions, could not avail themselves of that information while they have capacity, to ensure that they had that protection at a later stage. That also applies to court-appointed deputies: the court could satisfy itself not just about their financial propriety and the fact that they were not bankrupt, but that they had been checked against the POVA register.

Amendment No. 163 poses the other question. What if a person appoints a donee, who has had a POVA check and is fine when the lasting power of attorney is registered, but at the point at which the donor loses capacity it transpires that the donee has subsequently been registered on the POVA list? What further safeguard arises at that stage? The amendment is intended to explore the Government's attitude to that question. There should be provision in the Bill to ensure that if a donee were placed on the POVA register later, and the donor, having lost capacity and not in a position to be aware of that change, the appointment could be revoked. This group of amendments is about such safeguards.

I will not speak to the amendments tabled by the hon. Member for Daventry, although they attempt to deal with some of the issues affecting qualifications and disqualifications, and I have some sympathy for many of them.

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

I begin by endorsing the interests and arguments developed by the hon. Member for Sutton and Cheam (Mr. Burstow) on the care side. With neat complementarity, I shall introduce some similar queries on the financial probity side. The Bill would

exclude a bankrupt and amendment No. 24 would provide for a widening of that category to include a person who has been found to be unfit to hold a directorship under the Companies Acts, or has an unspent conviction for fraud or misfeasance.

Amendment No. 25 is prospective and says that if such a person were to develop those disqualifications, they would automatically be disqualified at that point. The Minister may wish to respond and say that bankruptcy is a formal position and having had a conviction or having been deemed unfit to hold a directorship are both historical occurrences. However, it would be obvious to all Committee members that if some rogue was not allowed to hold a directorship, the last thing that most of us would want is for them to hold an attorneyship for a vulnerable person who might lack capacity, particularly if they had stumbled into that position. The Minister must answer that.

Amendment No. 26 is slightly unusual and uncharacteristically imaginative. It is an attempt to create a framework to deal with a problem using a concept that I do not think exists now. We all know, anecdotally if not otherwise, that there are persons on the loose who prey on vulnerable people with ''a modest competence'', as the Victorians used to say, and who seek to divert it to their pocket. We will not go back to the remarks made by the Master of the Court of Protection about the number of EPAs that are misdirected, although that is a serious matter. However, it would not take a deep perusal of the tabloid press to find cases in which there was at least a suspicion that a professional person, be it a doctor or solicitor, had preyed on elderly ladies, got into their affections and managed through his professional skills to encourage them to execute a power of attorney.

The Minister will say, rightly, that there are safeguards in the process, both in the registration with the public guardian and in the fact that there is already a filter, in that a named person has to certify that there is no undue influence at the time that the deed of attorney is created. Nevertheless, the problem has undoubtedly arisen in the past. The purpose of amendment No. 26 is to set a self-limiting boundary, which we could call either an anti-fraud provision or an anti-overstretch provision, by referring to any person who exercises attorneyship for more than 10 persons. The Minister will no doubt remind us that a financial company or legal person cannot exercise care attorneyships, but it is difficult to understand why any person should need attorneyship over more than 10 people, certainly within the context of family relationships of close affinity. Of course, the amendment does not preclude that; it just says that it would be necessary to get the approval and validation of the Court of Protection for holding more than 10 attorneyships. The amendment is an attempt to avoid the amassing of potentially lucrative attorneyships, and their diversion to a particular individual. I assure the Minister that I am not looking for trouble; I am merely anxious to anticipate ways in which such circumstances might arise, and to cut them off.

My final point is equally applicable, although in a different way, to the amendments moved by the hon. Member for Sutton and Cheam. There is a need for the public guardian to have a proper database, which would enable him to cross-reference and pick up aberrant trends or surprising developments that might give rise to concern. If I set myself up as T.E. Boswell Financial Associates and concluded nine attorneyships with different people, I hope that that would be logged somewhere on the public guardian's computer. No doubt there would have to be fuzzy matching, so that if I turned up next time as T. Boswell Financial Associates, someone would pick up that it was the same bloke trying a different tack. We need to look into that. As the hon. Gentleman said, some security-sensitive and confidential information is available on published registers for specific reasons relating to the most sensitive areas of care. Those matters are every bit as important as the financial matters about which I have been talking.

The Committee needs to realise that fraudsters do not operate in a particular area because they happen to specialise in it; they operate in it because they sense weaknesses in the system that they can exploit. If those weaknesses or loopholes are closed, they move to another area. A few years ago, I had some ministerial responsibility for and knowledge of student loan fraud. The way to tackle that problem was to establish a good student loan allocation system that was robust in filtering applications, and—once data protection rules had been cleared—to acquire the ability to match across to other activities so that one could find significant addresses that were presenting in completely separate contexts, such as the benefits system, as the fraudsters moved about the field looking for the areas that they could best exploit. This is a complicated subject and it is important that the Minister share his thoughts on it.

I was motivated to table my amendments by a feeling that persons in the position that they describe—those found guilty of offences, or found unfit to be directors of a public company—ought not to be allowed to become donees. The Minister may say that we need as much freedom as possible, but it is arguable that we need such a filter. It is certain that the public guardian cannot act as a passive recipient of information, without any ability to move through the system. If we are to leave him as the main defender of the interests of vulnerable people, we must make absolutely sure that whenever possible—it will not always be possible—potential sources of mischief are cut off at source, before they have developed into a serious problem.

I need say no more, except to put the matter into context. I hope that the Committee does not feel—I do not, and I do not think that the hon. Member for Sutton and Cheam does—that the majority of people offering themselves to be donees of attorneyship will be in anything like the position described in the amendments. There is no suggestion that such cases are universal, or even the norm. Most will be genuine family members or friends who wish to do their best

for the vulnerable person. We need to safeguard the position of those people by ensuring that they do not get tarred with the same brush as those who have entirely different motivations, who have besmirched the principle of attorneyship in the past, and, incidentally, who have breached all their legal obligations under the common law. Such people should not be allowed to continue to do so. We are legislating, and we want to get that right. We look forward to the Minister's response.

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

The Government understand the principles behind the amendments: to ensure that we protect vulnerable adults who find themselves at risk of coercion or undue influence from people with deeply undesirable motives.

I shall deal first with amendments Nos. 24 and 25, tabled by the hon. Member for Daventry, which are designed to prevent those found unfit to hold a directorship or those convicted of fraud or misfeasance from being appointed or continuing to act as attorneys in respect of property and affairs. I understand the hon. Gentleman's wish to protect the unsuspecting or naive donor from abuse, and he is right that attorneys of property and affairs will be in a position of trust. However, as I explained this morning, there are sufficient safeguards in the Bill.

I do not want to repeat myself too much, but it is important to refer back to best interests and to page 71 of the draft code of practice, which states that if the donee has behaved, is behaving or proposes to behave, in a way that is contrary to the ''best interests'' of the donee, the court can revoke the donee's power. I assure the hon. Gentleman that the Bill provides that those adjudged bankrupt after becoming an attorney will have their powers to act on the person's property and affairs revoked. That is found in clause 33.

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

The Minister will not be surprised to learn that I anticipated a reply along such lines. There is an issue about whether persons judged unfit are more or less worthy than persons who may have become bankrupt for reasons that have not been wholly within their control. None the less, will he reflect on a situation in which a person wishes to appoint an attorney who happens to be in one of those categories, but is unaware of that fact at the time of the intended appointment? If that were to come to the notice of the public guardian, who might have a register of such persons that would not necessarily be publicly available or available to the donor of the power, would there be any means whereby the public guardian could properly draw the attention of the potential donor to the situation? Will there be an amber light? Otherwise, I might find someone with whom I got on very well, who seemed to be competent and was plausible, and I might conclude an attorneyship with that person—

Mr Alan Hurst (Braintree, Labour)

Order. The hon. Gentleman is making an intervention, not a speech.

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

In response to the hon. Gentleman, I must say that donors will have to take account of possible changes of circumstance. If important

information were not available to the public guardian at first call, he might take an interest. I say ''might'', but that might allow him to determine whether he felt that the information had a material effect on the original decision.

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

I am conscious of your stricture, Mr. Hurst, but I am still concerned about what, in shorthand, I will call a prior situation or conviction of which the person who wants to draw up the power of attorney might not be aware. Is there any means by which the public guardian could draw his attention to it before the matter was concluded, notwithstanding what might happen further down the track?

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

I am not sure that I follow the hon. Gentleman. Is he saying that the public guardian should somehow act as a watchdog and draw such matters to the attention of the person who presumably at the time had capacity and made the request? I frame my response as I did earlier: if circumstances or certain facts came to light, the public guardian would be right to consider them and might think that they were material in making a decision. I am informed that the Master of the Court of Protection has allowed a son to continue as his mother's attorney, even though the son was in prison for a serious offence. He did so because he believed the evidence before him, which was that the son loved his mother and his mother trusted him. The fact that he had committed an offence did not mean that he was not able to act in his mother's best interests. Again, we come back to a case-by-case judgment and to the evidence that is before the Court of Protection at the time, or before the public guardian acting in the role of the guardian of public interests. There are difficult judgments to make, but it is right to leave them to those who are in a position to make them. I have stressed the safeguards in the Bill.

As for amendment No. 26, people often choose solicitors and accountants as financial LPAs. Sometimes, the best solicitors and accountants might have more than 10 attorneyships. I am also informed that the Public Guardianship Office can already check and search its database for logical attorneyships under the Bill. Given the proximity of solicitors and accountants, they, too, have their professional bodies and complaint mechanisms, so there are several ways in which such matters can come to light. The hon. Member for Daventry will recall that, unfitness to act as a company director might arise from a failure to understand complex companies legislation. It follows that a person who has been made personally bankrupt cannot handle someone else's personal finances, but that is not always the position of a company director who has been declared unfit, when that might have occurred for any number of reasons. It is right to rule out bankrupts, but the determination of someone's fitness must be made by the person who is giving the power of attorney.

Amendments Nos. 160 to 163 would prevent an LPA from being created if the proposed attorney were on the protection of vulnerable adults list. I appreciate the reasons behind these amendments, but I am

advised that that is not possible. The POVA list is designed to ensure that people included on it are not recruited as care providers.

The Bill provides sufficient safeguards. Clause 22(3) provides that the Court of Protection may revoke an LPA if it is satisfied that the attorney

''has behaved, or is behaving, in a way that contravenes his authority or is not in P's''—

the donor's—

''best interests''.

I have also talked about how concerns can be raised with the Office of the Public Guardian under clause 56.

The hon. Member for Sutton and Cheam has proposed a number of amendments affecting deputies, which would also involve the POVA list. It is simply not possible to use the list in that way unless fundamental changes are made to the Care Standards Act 2000, and if we wanted to make those changes, we would have to go down that avenue.

Clause 16(4) makes it clear that

''(a) a decision by the court is to be preferred to the appointment of a deputy to make a decision, and

(b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.''

In other words, it should be a restricted power. It is important to bear that in mind with regard to the role of the deputy. We should not lose sight of the fact that under clause 56 the public guardian is required to maintain a register of orders appointing deputies and supervising deputies appointed by the court. We believe that those safeguards are sufficient.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I want to be clear about the implications of what the Minister is saying. Is he saying that someone could be appointed as a donee under an LPA to make decisions about a person's welfare, but if they were also employed by an agency, they could not be the employee providing domiciliary care if they were on the POVA list? Someone could make decisions about the provision of a care package to someone and the release of resources and what the package might involve, but they could not provide that care themselves. Am I right to say that someone on the POVA list can make the decisions, but cannot provide the hands-on care? That is not a consistent position for the Government to take.

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

Clearly, under the POVA list arrangements and the Care Standards Act, there is a particular set of rules and provisions that would have an effect, someone on the list would not be in the care situation. However, under the Bill, the necessary determinants are the court's judgment on the evidence before it and the fitness and capacity of a particular person to make those health and welfare decisions.

It is important to stress that the Government envisage that there will be very few deputies acting in this area. In the light of the case profile currently before the court, it is likely that we are talking about difficult decisions made in a handful of cases every year, in which a judge would appoint a deputy to make those determinations. I can understand the hon. Gentleman's concern, but, as I have said to him, his proposals would require fundamental changes,

because the POVA list applies only in the limited area of care standards. On that basis, the Government believe that the amendments are unnecessary.

I must go back to much that we have said before. Financial deputies will also be supervised in much the same way as receivers are at present—by requiring them to file accounts, by restrictions on their powers, and by visits by Court of Protection visitors. That supervision will be front-loaded, in that checks will be made when someone applies to become a deputy, to ensure that only suitable people are appointed and that the supervision is at an appropriate level. The court also has the power to require a deputy to give security to the public guardian if it so wishes.

I understand the intent behind the hon. Gentleman's amendments, but I think that protection already exists. We ought not to conflate two very separate pieces of legislation, and the purpose of care standards legislation is quite confined. On that basis, I hope that the hon. Gentleman will feel able to withdraw the amendment.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I served on the Standing Committee that dealt with the Care Standards Act 2000, and I understand that it had different purposes in mind, but fundamental to its purpose was the protection of vulnerable adults. At least in part, surely the purpose of our considering this Bill is to determine how we ensure that those who lack capacity—to take particular decisions, or any decisions—are properly protected. In respect of the clause and the means by which someone is appointed as a donee, I remain concerned that it seems to have been beyond the bounds of possibility for parliamentary draftspeople to find suitable words to enable the POVA list to be used, as it is within the Care Standards Act.

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

I ought to emphasise that the attorney in this regard is there, most often, to give consent to treatment, not to care for the person; nurses and doctors will be caring for the person in a care home or a hospital. The hon. Gentleman slightly conflates those matters. The attorney is there to act as that extra legal safeguard; their role is about consent, not about caring for the person in the care standards situation, as the hon. Gentleman suggested.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I accept that the two things may be running in parallel. They are remarkably close; indeed, in terms of what I am trying to address they are sufficiently close to allow an argument that the Minister ought to consider a little further. In order to ensure that appropriate safeguards are in place, a person who still has capacity and is making an important decision about who they wish to act as their donee—for example, on welfare matters—should be able to know that the donee is not on the POVA list. The POVA list does not deal only with those who provide hands-on care, but with those who are responsible for the management of services for vulnerable adults. We are talking about people who in

some respects will be taking decisions about the welfare of people in their charge. That is why there are grounds for pressing the Minister a little further.

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

None of my comments should prejudice the Bichard report, recommendation 19 of which said that the Government should introduce new arrangements across the board to protect children and vulnerable adults, and that a register could provide more information relevant to an individual's suitability in a particular respect. We are considering whether LPAs and deputies would come under the scope of such a register, notwithstanding my point about the consent role as opposed to the care role. However, as I said, I am sympathetic to the hon. Gentleman's general point.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

That is probably as far as we are likely to get on the issue today. That is helpful; I shall take what the Minister says about the amendments as important comfort. There are issues that we would like to return to, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 ordered to stand part of the Bill.