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

I beg to move amendment No. 167, in

clause 11, page 6, line 31, leave out from 'to make' to the end of line 35 and insert

'a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter'.

Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to discuss amendment No. 168, in

clause 11, page 6, line 43, at end add—

'(8) Where a lasting power of attorney authorises the donee (or, if more than one, any of them) to make decisions about P's property and affairs the authority does not extend to making a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter, unless it has been specified on the instrument that the donee may make such decisions whilst P has the capacity to make decisions about P's property and affairs.'.

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

The amendments are intended to ensure that proxy decision making in respect of lasting powers of attorney are firmly anchored in the principles of clause 1 and that, in discharging his responsibility, a donee keeps in mind that he is on shifting sands as regards the issue of capacity, as that may change from one decision to another. It must be asked whether a person has capacity. That always has to be at the forefront of a person's considerations when they are acting as a proxy decision maker.

A person with an LPA ought to ask, ''Does the person for whom I am about to act have the capacity to make this decision?'' Amendments Nos. 167 and 168 would put the fact that that obligation exists in clear terms by linking clause 11 back to clause 1, and by clearly stipulating how those principles should work in respect of both clause 11 and the restrictions that

should apply to a lasting power of attorney. Given all that has been said so far about the pre-eminence of presumption of capacity, I hope that he Minister can give us some reassurance on the subject.

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

I understand the desire behind the amendments. It is, of course, important to emphasise that incapacitated people should be given every help and encouragement to make their own decisions; that is part of the underlying ethos of the Bill, and I have said much about it already.

Clause 11(6)(a) already makes it clear that an attorney's authority to make decisions about someone's personal welfare extends only to circumstances in which the person lacks capacity. That paragraph was added in response to recommendations made by the Joint Committee.

Amendment No. 168 would limit an attorney's ability to make property and affairs decisions on the donor's behalf to times when the donor lacks capacity, unless the donor states otherwise on the LPA document. However, many people find it helpful to appoint an attorney to deal with their property and affairs while they still have capacity—a matter that we discussed this morning.

I have said how EPAs work at present. The difference under the Bill is that LPAs will have to be registered before they can be used for the first time, so the tracking process will be a lot better. A donor who wishes to limit the authority of the attorney to times when the donor lacks capacity can already do so, because the Bill makes provision for the attorney to specify any restrictions or conditions in the LPA document. The hon. Member for Daventry mentioned the roles of professionals earlier. In drawing up that document, many people will call on solicitors and professionals, who also have a duty of care to ensure that such things are done in the right way. 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 thank the Minister for his response. He says that existing custom and practice and the consultations that already happen with lawyers and other experts in drafting an EPA will carry on with LPAs, and that that should provide sufficient safeguards. If I felt that that was the case, I would not have tabled the amendments. I feel that it would be appropriate to go further than that and to be clearer about what the duties might be.

I was interested in what the Minister said about a person being able to stipulate that they wish the LPA to be exercised only if they lacked capacity. That poses the question that, inarticulately, I tried to pose this morning: when would that be stipulated, and how would a third party—the bank, or another person—know that capacity had been lost? Without that clarity in the system, I suspect that there will be occasions on which other parties will feel unable to act on the instructions of a donee. That dilemma is still to be resolved. The amendments are not about resolving that issue, but about making things clear on the issue of capacity. I am grateful for the Minister's response.

Again, we will probably find an appropriate time to come back to the issue. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 ordered to stand part of the Bill.