All 8 contributions to the Powers of Attorney Act 2023

Read Bill Ministerial Extracts

Fri 9th Dec 2022
Wed 1st Mar 2023
Fri 17th Mar 2023
Mon 20th Mar 2023
Fri 16th Jun 2023
Tue 4th Jul 2023
Powers of Attorney Bill
Lords Chamber

Order of Commitment discharged
Thu 14th Sep 2023
Mon 18th Sep 2023
Royal Assent
Lords Chamber

Royal Assent & Royal Assent & Royal Assent & Royal Assent & Royal Assent & Royal Assent & Royal Assent & Royal Assent & Royal Assent & Royal Assent

Powers of Attorney Bill

2nd reading
Friday 9th December 2022

(1 year, 2 months ago)

Commons Chamber
Read Full debate Powers of Attorney Act 2023 Read Hansard Text Read Debate Ministerial Extracts
Second Reading
13:22
Stephen Metcalfe Portrait Stephen Metcalfe (South Basildon and East Thurrock) (Con)
- Hansard - - - Excerpts

I beg to move that, That the Bill be now read a Second time.

Powers of attorney are important legal arrangements that allow people to appoint others—the donees of the power, known as attorneys—to act on their behalf. The powers normally relate to financial matters, and the attorney must act on instructions from the donor of the power—the person who made it.

Lasting powers of attorney, or LPAs, are a specific type of power of attorney with even wider scope. Such arrangements allow someone to appoint another to act on their behalf after the donor has lost the mental capacity to make their own decisions and give instructions. LPAs can apply to not just financial decisions but health and welfare decisions too.

Powers of attorney generally, and lasting powers of attorney specifically, are incredibly powerful and useful appointments. They allow people to retain control over aspects of their lives, in circumstances where they might not otherwise be able to make decisions or take actions. LPAs, in particular, ensure that people have the opportunity to make provision for a future where they may no longer have the mental capacity to understand what is happening to them and therefore to make decisions about the things they care about.

With the prevalence of dementia increasing and our population ageing, these documents will become ever more important in ensuring that people can continue to live the lives they want to. They will be even more important in protecting people who might otherwise be the target of fraud, scams and abuse. I have seen that in my constituency and on a personal level. These are powerful documents, and they need to be used carefully.

Lasting powers of attorney are part of the toolkit to ensure that people can live the lives they want to. That is why I am delighted to bring forward this Bill in my name. It delivers two important changes to legislation around powers of attorney. First, it will reform the process of making and registering a lasting power of attorney to make it safer, easier and more sustainable. Secondly, it will widen the group of people who can provide certified copies of powers of attorney to include chartered legal executives.

Before I get into the detail of this Bill, I will set out the history of these documents and the problems that have arisen as a result. Under the Power of Attorney Act 1971, the power of attorney is a formal appointment whereby one party, the donor, gives another party, the attorney or donee, the power to act on their behalf and in their name. Power of attorney, in contrast to appointing an agent, can only be created and valid where certain legal formalities are observed, and they must be granted by deed. The ordinary or general power of attorney is for when the donor only needs help temporarily, for example when people are in hospital or abroad and need help with everyday tasks such as paying bills.

Ordinary powers of attorney are common in the commercial world, where they may be used in a number of ways, most typically to enable another person to execute documents on the donor’s behalf or in a transactional context. Another use is in appointing a power of attorney to manage financial or property matters in a donor’s absence. However, there were issues with these powers of attorney, as the power ceases to have effect when the donor lost mental capacity to make decisions and give instructions. As the Law Commission pointed out in 1983:

“at a time when the assistance of the attorney has become for the donor not merely desirable but essential, the attorney has no authority to act.”

This resulted in the introduction of the Enduring Powers of Attorney Act 1986. As the name suggests, enduring powers of attorney endure past the loss of mental capacity, allowing an attorney to continue acting on a donor’s behalf. Individuals concerned about their ability to control their own lives in future could now ensure that the people making those decisions were the people they had chosen and that they trusted.

Peter Gibson Portrait Peter Gibson (Darlington) (Con)
- Hansard - - - Excerpts

My hon. Friend is making an important speech and highlighting the legislation that brings us to today and his important Bill. I just put on record the importance of those enduring powers of attorney that predate the current lasting powers of attorney and to highlight to the House the necessity for people to register them when capacity is lost. Many mistakenly believe, where an enduring power of attorney is in place, that there are no steps to take in order for it to be used.

Stephen Metcalfe Portrait Stephen Metcalfe
- Hansard - - - Excerpts

I am grateful to my hon. Friend for his clarification. Obviously, he knows considerably more about the history of this than I have perhaps been able to gain during my research. In the 1990s, there were greater concerns about the abuse of enduring powers of attorney. I am told there was concern that between 10% and 20% of enduring powers of attorney were potentially being used in an abusive way. To resolve that, and following extensive work by the Law Commission, the Mental Capacity Act was passed in 2005. Enduring power of attorney was replaced by lasting power of attorney, or LPA, in 2007.

New safeguards were introduced—primarily the requirement for the LPA to be registered by and with the new Public Guardian and their office, the Office of the Public Guardian, before it could be used, whether before or after a loss of capacity; and the role of the certificate provider, who must confirm that the donor understands their LPA and that there was no fraud or undue pressure.

Fifteen years on, the system is in need of an update. The Government’s 2021 consultation on modernisation clearly set out the issues, and media coverage over the past year has further emphasised the need for reform. First, people wishing to make LPAs struggle to understand the system and to complete their LPA accurately. Guidance can be overwhelming and full of jargon such as “donor”, “attorney”, “certificate provider”, “execution” and “jointly and severally”. This is specifically daunting in urgent circumstances—for instance, due to a recent diagnosis of dementia or terminal illness.

The reliance on paper also makes it more complicated than necessary. The legislative framework and operational process involved mean that, even where the LPA is filled in online, each LPA has to be printed off and signed on paper in five places in a specific order by at least three people to be valid. The possibility for error to creep in is high, and the Office of the Public Guardian indicates that as many as 11% of LPAs sent to the OPG cannot be registered because of signing mistakes. Donors cannot understand why the LPA process does not make use of technological improvements since 2007. They want to use a digital system to fill in, sign and submit documents. As the Government set out in their consultation, that would allow a speedier process, reduce the administrative burden on people and help to reduce or even remove many of the errors in the process.

Secondly, the OPG is drowning in paperwork, and that does not allow the OPG to deliver the service that its fee payers expect. Many in this place will know about the media reports on the backlog in registrations. The OPG reports that it is taking up to 20 weeks on average to process an LPA application, against its target of eight weeks. Others will be receiving letters from constituents asking for assistance, as they are left unable to support their loved ones because an LPA is currently sitting in that backlog.

We all agree that this situation is unsustainable. The OPG carries out manual administration checks. It stores 11 tonnes of paper at any one time, and LPA applications are generally increasing, with the number of LPAs submitted for registration more than doubling between 2014-15 and 2019-20. That is creating an ever increasing need for staff, equipment and storage space. The ability to use a digital channel—alongside, I stress, a paper route—to make and register an LPA would help to resolve some of those issues. Most of the current manual checks could be automated. Physical storage requirements could be reduced and, critically, it would increase the OPA’s resilience to backlogs caused by the disruption of paper processing.

The third point, and probably the most important one, is that while a digital channel is desirable for donors, attorneys and the OPG, it must be balanced against the need for suitable safeguards. The risk of fraud is small, but it is a real risk. The BBC Radio 4 programme “You and Yours” reported last year on the case of Marie—not her real name—who was a victim of LPA fraud when someone took out an LPA in her name and attempted to sell her home. Concerns about undue pressure and abuse are also common. Earlier this year, in parallel with another report by “You and Yours”, a debate was held in the other place on LPAs and the economic abuse of older people.

I firmly believe that LPAs are a positive way for people to control what happens if they lose mental capacity. They are an insurance policy that people should take out to appoint people they trust to make decisions in their best interests, should the worst happen. But I cannot ignore that there must be protections in the system to reduce the chance of it being manipulated by those who intend ill will towards others.

James Sunderland Portrait James Sunderland (Bracknell) (Con)
- Hansard - - - Excerpts

I am not a lawyer—heaven forbid!—but my understanding of the Bill is that it will do a number of really important things. It will provide much better safeguards on financial and property issues, and it will provide safeguards where there is loss of mental capacity and against abuses of power. It will also make the process a bit more streamlined, as we will not be so dependent on expensive lawyers now that legal executives can do this. My question for my hon. Friend is, will it be any cheaper?

Stephen Metcalfe Portrait Stephen Metcalfe
- Hansard - - - Excerpts

My hon. Friend asks a very good question. Although I cannot guarantee it will be cheaper, I can say that it will be no more expensive. We need to make the system sustainable and the relatively straightforward reforms in my Bill will allow that to happen, while keeping the price competitive, as it is at the moment.

My hon. Friend has hit upon the point at which I am going to describe some of the detail of the Bill and how it resolves some of the issues to which I have alluded. It makes a number of changes to the Mental Capacity Act 2005, specifically to schedule 1, which covers provision for the making and registration of LPAs. The most crucial change is that the Public Guardian will verify the identity of certain parties as part of the registration. It is important to strengthen safeguards in that way on a document that can confer such wide powers on access to savings, investment and property. The Government’s consultation indicated that these proposals were well received by respondents, including the public, as a necessary safeguard. This will be a key protection against the horrible position Marie found herself in, by increasing confidence that the people named in the LPA have actually been involved in the process of making it. This provision is even more important now, with identity fraud on the rise and perpetrators making use of ever-more sophisticated methods for targeting their victims. Removing loopholes in the system before they can become further exploited and other members of the public are put at risk is one reason I chose to take this Bill through Parliament.

The second main change is on the requirement for the application to register, requiring the donor to apply and changing what must accompany the application—currently, the instrument intended to create the LPA and the fee. This will facilitate a flexible system, so that instead of just a paper channel or a digital channel, each actor, whether they are the donor, the attorney or the certificate provider, can use the method that best suits their needs to complete a single LPA. This will reduce the administrative burden on donors and attorneys, while automated and early error checking will help to reduce the potential for signing and other errors that prevent registration.

Changes to the notification system will also facilitate this flexibility. The system requires that people the donor named in the LPA are informed by the applicant when the LPA is sent for registration, so that they can raise any objections. In the future, the Public Guardian will send these notifications. This change is made for three reasons. First, the Public Guardian can be certain that the notifications have been sent, increasing the protection provided. Secondly, it removes the administrative burden from the donor. Thirdly, the Public Guardian will be co-ordinating the execution of the document, so is best placed to send these in a timely manner.

That links to changes to the process for objecting to the registration of an LPA. The current process is complex, with different routes for different people, depending on the type of objection. People and organisations not named in the LPA do not even have a formal route to raise objections. That group currently includes organisations such as local authorities, which have a statutory safeguarding duty but no formal way of raising related concerns about an LPA’s registration with the Public Guardian. Although the Public Guardian currently processes these objections, because it is the sensible thing to do and offers the best protection for the donor, the scope of the current legislation is limited and creates ambiguity. To rectify this issue, the Bill introduces a single route for all objections, starting with the Public Guardian and ending at the Court of Protection, if that is required. It applies to all individuals and organisations, even if they are not included in the original LPA. So there is more clarity about where and how to raise concerns about the registration.

Let me turn to increased protection for donors. Finally, to modernise LPAs the Bill changes the evidence of registration of the LPA. As I said, LPAs are currently paper documents. That means that if there are changes—for instance, if an attorney is removed because of abuse—the Public Guardian needs to amend the paper documents. As I am sure the House can imagine, why would someone who has been removed from an LPA because of abuse want to return it to the Office of the Public Guardian? The LPA will therefore be registered as an electronic document. That will create a single source of truth that can be accessed in real time by third parties, but more importantly, updated in real time by the Public Guardian without requiring the paper to be returned.

I recognise, however, that some individuals and third parties will remain unable to use an electronic system. For that reason, the Bill also provides for other methods of physical proof. I believe that those will be set out further in regulations.

As I stated, my Bill seeks not only to modernise LPAs, but to amend section 3 of the Powers of Attorney Act 1971 to enable chartered legal executives to certify copies of a power of attorney. That Act sets out how a copy of a power of attorney can be made and who can certify or sign copies, stipulating that only

“the donor of the power…a solicitor, authorised person or stockbroker”

can sign or certify

“that the copy is a true and complete copy of the original”.

The Bill seeks to include chartered legal executives among those who can certify a copy of a power of attorney.

We have come a long way since 1971; it is more than half a century since that Act came into force. Chartered legal executives are allowed to provide legal services under the Legal Services Act 2007 and now provide many of the same legal services as solicitors. It is therefore completely right that chartered legal executives have the ability to certify copies.

I am conscious of time, so I will draw my remarks to a close. I have outlined a number of specific changes that the Bill will make. It is a relatively straightforward piece of legislation, but is important none the less. It will make the Office of the Public Guardian more sustainable; streamline the process; increase the number of people who can authorise copies of lasting powers of attorney; and introduce some important safety checks. I very much look forward to hearing what the Minister has to say. I thank him and his Department for working with me to bring the Bill to this stage and I hope that, after today’s debate, we can take it further forward. I commend the Bill to the House.

13:43
Alex Cunningham Portrait Alex Cunningham (Stockton North) (Lab)
- Hansard - - - Excerpts

I congratulate the hon. Member for South Basildon and East Thurrock (Stephen Metcalfe) on promoting this private Member’s Bill and on introducing it today. He made his case very well; this is a matter of great importance that can affect so many of us.

Last year, I wrote to the then Justice Minister overseeing this portfolio, the hon. and learned Member for Cheltenham (Alex Chalk). I had several concerns, particularly regarding the lack of training and awareness on the limits of power of attorney, that had been brought to my attention by a number of practitioners. The then Minister’s response was reassuring and I am glad that the agenda in this area is moving forward with Government support, but there is still much to be done to improve the system beyond the Bill’s parameters. That said, Labour supports the Bill’s aims and welcomes the modernisation of the process for making and registering lasting powers of attorney.

It is of cardinal importance that donors are protected. If technology can provide more effective ways of strengthening those protections, we should make full use of it. Furthermore, although I understand that the strain on the Office of the Public Guardian has reduced in recent times with the recruitment of more caseworkers, the staff there are still stretched and delays are still being experienced. I hope that the modernisation process provides the necessary streamlining to ease the burden on the Office of the Public Guardian.

We welcome the Bill’s amendment to section 3 of the Powers of Attorney Act 1971, which the hon. Member for South Basildon and East Thurrock mentioned, which will enable chartered legal executives to certify copies of powers of attorney. It is good to see that particular matter addressed. However, there are several areas on which I would welcome the thoughts of the hon. Member or the Minister to inform my understanding of why they have been omitted from the Bill. One notable absence from the Government’s response to the consultation was the Law Society’s recommendation that certification should expressly include consideration of the donor’s capacity. This seems like a sensible proposal to me, and I am interested to hear why the Bill has not taken it on.

While LPAs are one important mechanism by which it is possible to support the exercise of legal capacity, as Alex Ruck Keene KC notes in an article on his excellent website about mental capacity law and policy, it is certainly not the only mechanism. He notes that it would be possible within the same zone of endeavour as this Bill

“to flesh out the provisions of the Mental Capacity Act 2005 to secure that a person is recognised as being able to make their own decisions in more situations than is currently the case.”

Should we expect further legislation that would provide for wider reforms, or is this Bill the extent of the Government’s ambition for legislative work in this area? I ask with genuine interest, as we are looking forward to working with the Government, and the hon. Member, on introducing reforms in this important area.

I was pleased to read in the Minister’s foreword to the consultation response that

“it remains for me to emphasise again the importance of us modernising LPAs in a way that is right for donors. They are the ones who choose their attorneys, they are the ones that should set the scope of the powers they wish to confer under an LPA, and they are the ones whose rights and freedoms must be protected and facilitated through this service. It therefore remains the case that their needs are paramount and must come before those of any other party as we seek to make changes.”

We very much agree with this sentiment and are looking forward to scrutinising and potentially improving these measures at Committee stage.

13:47
Holly Mumby-Croft Portrait Holly Mumby-Croft (Scunthorpe) (Con)
- Hansard - - - Excerpts

I thank my hon. Friend the Member for South Basildon and East Thurrock (Stephen Metcalfe) for bringing forward this private Member’s Bill. If I may, Madam Deputy Speaker, I would also like to thank you, as the right hon. Member for Doncaster Central (Dame Rosie Winterton). I carried out some research before I came today, as I have worked on lasting powers of attorney in a previous life, and I note that you have done an awful lot of work in the background on this subject. I want to put on record my thanks for that work and what that has brought about today.

I wholeheartedly support this private Member’s Bill. I absolutely understand and have seen first hand the need for the measures in it. I would like to put on record my thanks on behalf of this side of the House. I wish my hon. Friend well with his Bill.

13:48
Jerome Mayhew Portrait Jerome Mayhew (Broadland) (Con)
- Hansard - - - Excerpts

I aim to be as brief as my hon. Friend the Member for Scunthorpe (Holly Mumby-Croft). I want to put on record my support for this Bill. Often in Friday sittings we talk about photogenic furry animals, but this is very different. This is an important Bill that will affect us all. To take the example of just one disease, it is estimated by Alzheimer’s Research UK that there are 944,000 people in this country suffering from dementia. The estimate is that one in three children born this year will develop and suffer from dementia in the future. This is an issue that affects us all now or will do in the future.

I want to highlight the importance of lasting powers of attorney and point out that there are not one but two different types. There are the ones that affect property and affairs and there are, crucially, the ones that affect welfare and health. From personal experience as an attorney in this area, I found the current system surprisingly complex, and that was as a qualified barrister. To be using only paper is surprising in this day and age. The complexity of sequential signatures was also surprising, and the identity checks relying on witnesses are frankly inadequate in modern times. I welcome the intention of the Bill, which is to make it easier to create LPAs, using digital facilities where appropriate. I recognise that about 25% of those over 65 do not have easy access to the internet, although on many occasions it will be younger family members whom they will be appointing as attorneys, and in those circumstances many of that 25% will be given assistance to use digital access as well. However, it is important that a paper alternative continues to be provided, and I am glad that is recognised in the Bill.

My final point is that it is great that the Bill contains increased protections from abuse, particularly in paragraph 7(2) of schedule 1, which makes reference to the process for objecting to registration for third parties. That is a useful addition, and I thoroughly welcome this Bill.

13:50
Peter Gibson Portrait Peter Gibson (Darlington) (Con)
- Hansard - - - Excerpts

It is a pleasure to be called to speak for the third time this day; I draw the House’s attention to my entries in the Register of Members’ Financial Interests. As a solicitor, I have prepared many hundreds of lasting powers of attorney for both health and welfare and property affairs and, before their advent, many enduring powers of attorney. I still act on a regular basis to take care of the affairs of individuals who have appointed me as their attorney, often in circumstances where they had no family to act for them or they did not want to entrust such responsibility to a family member. Indeed, I know I have many more future nominations that will require me to act.

I welcome the steps the Bill takes to update the process of preparation for LPAs, which have been around for well over a decade, and I congratulate my hon. Friend the Member for South Basildon and East Thurrock (Stephen Metcalfe) on bringing it forward. An LPA is a very powerful document, and we should always be aware, in making changes to them, that they can, in the wrong hands, be open to abuse.

In my personal opinion, the engagement of a legal professional to assist in the preparation can be invaluable, but not essential. My own uncle, always keen to save a bob or two, especially in order to avoid legal bills, recently prepared powers of attorney and decided to do it himself, which in actuality involved him making many telephone calls to me while he filled the forms in. Sadly, his forms were rejected by the Office of the Public Guardian and he had to start all over again. At the end of the saga, he concluded that he wished he had gone to a lawyer to get the job done in the first place. I welcome the measures in my hon. Friend’s Bill, which would certainly have streamlined the process for my uncle.

My final point is about we are with powers of attorney in respect of the high street financial institutions. There seems to be a great lack of training among our high street banks on how to engage with people who have been appointed as attorneys and the security measures involved. They make it almost impossible to deal with them in a co-operative way as an attorney, and I would welcome the Minister’s comments on that. I wish my hon. Friend well with his Bill and, should he require assistance on his Bill Committee, I would be delighted to serve.

13:49
Danny Kruger Portrait Danny Kruger (Devizes) (Con)
- Hansard - - - Excerpts

I will be brief: I completely agree with the purpose of this Bill and will be supporting it, but I want to speak briefly in recognition of the great significance of LPAs. I quote from Stephanie Boyce, the President of the Law Society, who has said:

“LPAs are arguably one of the most important legal documents that a person will make because they delegate such wide-reaching powers over their life…the consequence of an attorney making a poor decision could result in the loss of all their assets, being put into a care home against their current or past wishes, or even their premature death”.

It is death that is on my mind, because of my role as chair of the all-party parliamentary group for dying well, which campaigns against a law for assisted dying in this country. The problem of elder abuse is sadly endemic in our society, and I am afraid that ensuring that we get the signature or the verbal assent of an elderly person is not always enough to protect their interests. We must always hold to the essential dignity of a person in old age. The more dependent they are, the more dignity they need.

I spoke yesterday about my concerns about the drift towards a cashless society. We are moving towards a paperless society as well. That may well be a good thing for older people, but it can also become more bewildering and expose us to greater potential for abuse. I think we need a grand review of the effects of digitalisation in our society, on our communities, on vulnerable people and on liberty.

13:54
Mike Freer Portrait The Parliamentary Under-Secretary of State for Justice (Mike Freer)
- Hansard - - - Excerpts

I thank my hon. Friend the Member for South Basildon and East Thurrock (Stephen Metcalfe) for promoting this vital Bill. I look forward to supporting him as the Bill completes its journey and, I hope, makes its way on to the statute book.

My hon. Friend did an effective job of laying out the provisions of the Bill and its purpose. It is immediately clear both from his words and from the contributions of Conservative colleagues—I will turn in a few minutes to the question raised by the shadow Minister, the hon. Member for Stockton North (Alex Cunningham)—that we all recognise that a lasting power of attorney is a vital resource and how important it is to ensure that the process has sufficient safeguards, while remaining accessible and efficient.

It is a deed that gives peace of mind and assurance to individuals, should there be a time when they lose mental capacity to make decisions for themselves. It gives them peace of mind that there is a pre-selected loved one or professional there to help them, whether to provide support and make decisions about managing their financial affairs, or to make decisions relating to their healthcare. A lasting power of attorney ensures that a person’s wishes and preferences can be taken into account, and reduces the stress and burden on families when capacity is lost unexpectedly.

My hon. Friend rightly highlighted in his opening remarks that we are living in a society with an ageing population. One of the implications of this is that we are likely to see an increase in people who lack mental capacity due to age-related conditions. For example, as my hon. Friend the Member for Broadland (Jerome Mayhew) mentioned, the Alzheimer’s Society says that there are currently around 900,000 people with dementia in the UK. That figure is projected to rise to 1.6 million by 2040, meaning an increase in the number of families who will find themselves faced with the reality of needing to make critical decisions about their loved one’s finances or welfare.

I know that those can be difficult decisions, talking about and preparing for the worst-case scenarios, including preparing for loss of capacity. It can be harrowing for people, their friends and their family. However, preparing early is the key to ensuring that life can continue in the way the person wanted. Putting in place a lasting power of attorney gives family and friends an insight into a person’s wishes and preferences and who they would like to make decisions on their behalf when they are unable to do so. Given the importance and significance of the document, and the gravity of the power it confers, it is absolutely right that we look at how we can make the process for making and registering a lasting power of attorney safer, simpler and more accessible.

I am grateful to my hon. Friend the Member for South Basildon and East Thurrock for setting out so eloquently the problems that exist in the current system. Members of this House will be aware that the Ministry of Justice has consulted on potential solutions to some of those challenges, and I am delighted that the Bill promoted by my hon. Friend reflects and builds on the Government’s response to the consultation.

Turning to the question raised by the shadow Minister, in terms of the capacity issue, the Government remain committed to the principle of supporting decision making but believe that that is provided best by the Mental Capacity Act 2005. The proposals in the consultation were carefully considered by the Government, but we still have concerns that a formal framework may be unnecessarily legalistic and would overlap with other provisions, such as advocacy.

I want to give a commitment to the House that we are seeking to ensure that the system is as simple and easy to navigate as possible. My hon. Friend talked about the current backlog in the Office of the Public Guardian, which is leading to longer waiting times for LPA registrations. That has been exacerbated by the limitations arising from the current legislative framework and the operational practice it requires. My hon. Friend explained that all LPAs are currently made on paper, which creates a huge logistical burden on everyone involved. It is also not reflective of the needs of users in today’s society, but I take on board the point made by my hon. Friend the Member for Devizes (Danny Kruger) about ensuring that, as we embrace technology, we must also ensure that there are sufficient checks and balances for those who may be vulnerable to abuse.

Frankly, people expect Government services to be available online, while also having the option to do things on paper when they prefer to. I am pleased that the Bill will create a digital channel to make an LPA, while also improving the paper channel for those who need or choose to use paper. A digital route will make LPAs more efficient and realise many benefits. It will allow for a speedier process, reduce the administrative burdens on individuals and automate many checks that should reduce the risk of errors in the paperwork that often delay registration and therefore the ability to use the LPA.

The Bill goes further than simply the digital and paper channels. By facilitating a more flexible system, the ability to move between the channels to create a single LPA will provide a far more flexible service and far more benefits to a wider group of people. Even those who want to use paper will benefit from others using digital elements in the process. The challenges faced by the OPG cannot be solved without reform, which is why I am grateful for the improvements that the Bill seeks to facilitate. I am confident that by introducing a digital process and automated checks and reducing some of the burdens on the organisation, we will build resilience into the process, meaning that people will be able to register their LPAs more quickly. It should also significantly reduce the chances of backlogs forming.

I assure the House that the vast majority of LPAs—there are currently more than 6 million on the register—are used properly to provide the support they are intended for. However, we know that LPA fraud and abuse takes place, and steps must be taken to address it. In 2021-22, the OPG investigated 2,408 LPA cases in response to concerns received. Of those, the OPG took remedial action in 649 cases. Such action can include an application to the Court of Protection to remove an attorney or revoke an LPA, as well as working with the attorney to provide education and guidance on how they should carry out their role.

Although the matters I have outlined apply to a very small proportion of the LPAs registered by the OPG, the impact on the individuals who experience abuse can be significant, which is why I am pleased that the Bill includes provisions to make the process more secure, especially for the donor, and lays the groundwork for further changes to be made in regulations.

In line with the Government’s consultation response, the Bill introduces identity checks as a requirement of registration. This is an important safeguard that will assure the OPG that those who claim to be involved in the LPA are who they say they are and reduce the risk of fraud by false representation. Regulations will support the change by specifying who will be subject to checks—the donor and the certificate provider—as well as how those checks will be carried out and which documents will be acceptable. I am committed to providing a wide range of options as soon as possible, given that the average age of a donor is currently 74 and most are over 65.

Provisions are being made to streamline and improve the objections process so that it is easier to lodge a concern with the OPG. That is a vital safeguard that will include those with a legitimate concern—such as local authorities, care workers and even the police—who previously did not have a formal route through which to express their concern.

My hon. Friend the Member for South Basildon and East Thurrock pointed out that the Bill gives us the levers to make further changes in regulations that will improve other protections, including the role of certificate providers. By having the certificate provider take on the role of witness, we are strengthening safeguards. In addition to this increase in safeguarding, by combining the roles of certificate provider and witness we will also reduce the burden on the donor.

I am pleased that the Bill also addresses the role of chartered legal executives. It cannot be right that a chartered legal executive—a legally qualified Chartered Institute of Legal Executives lawyer—who legitimately participates in the creation of a power of attorney should be rendered unable to certify as genuine a copy of the same document that they were instrumental in creating. The Bill will address that anomaly.

In closing, I reiterate how vital the improvements in the Bill are to support individuals to make a lasting power of attorney and to certify copies of such important documents. The efficiency savings will ensure that donors and attorneys have a better system, with the savings made reinvested to increasingly improve the service, so it is an all-round benefit.

Finally, I reiterate my thanks to my hon. Friend the Member for South Basildon and East Thurrock and thank my hon. Friends the Members for Devizes, for Darlington (Peter Gibson), for Scunthorpe (Holly Mumby-Croft) and for Broadland for their contributions.

14:04
Stephen Metcalfe Portrait Stephen Metcalfe
- Hansard - - - Excerpts

With the leave of the House, I will draw together some final remarks. This has been a short but interesting debate. The scope of the Bill, as I expressed, is relatively tight, but it will make some important changes. It will improve access to lasting powers of attorney through a new technical and digital route while—I stress—maintaining a paper route. It will put in some additional checks on identities to ensure that those claiming the powers are who say they are. As we have heard, there will be a better route for raising objections when we think such powers are being misused and a simplification in the process of applying for an LPA by making it quite so onerous in timing and the order of signatures. In addition, there is the increased and enhanced role for chartered legal executives.

As I said, the Bill is relatively straightforward. I am grateful to have heard support from both sides of the House, including from the hon. Member for Stockton North (Alex Cunningham). I look forward to taking that further as we go into Committee. I am also grateful to my hon. Friends the Members for Scunthorpe (Holly Mumby-Croft), for Broadland (Jerome Mayhew) and for Devizes (Danny Kruger), and I am particularly grateful to my hon. Friend the Member for Darlington (Peter Gibson) for offering to serve on the Committee. If any other Member wishes to serve on the Committee, please do feel free to volunteer.

It has been an enjoyable debate, and I look forward to the Bill moving on to the next stage. I place on record my thanks to the Minister, the officials and all those involved in helping get it to this point. I also thank the Whips, and especially my neighbour, the Comptroller of His Majesty’s Household, my hon. Friend the Member for Castle Point (Rebecca Harris). I would not live it down if I did not mention that.

Question put and agreed to.

Bill accordingly read a Second time; to stand committed to a Public Bill Committee (Standing Order No. 63).

Powers of Attorney Bill

Committee stage
Wednesday 1st March 2023

(1 year ago)

Public Bill Committees
Read Full debate Powers of Attorney Act 2023 Read Hansard Text Read Debate Ministerial Extracts
The Committee consisted of the following Members:
Chair: Mrs Sheryll Murray
† Bell, Aaron (Newcastle-under-Lyme) (Con)
Firth, Anna (Southend West) (Con)
Fletcher, Katherine (South Ribble) (Con)
† Freer, Mike (Parliamentary Under-Secretary of State for Justice)
† Gibson, Peter (Darlington) (Con)
† Grady, Patrick (Glasgow North) (SNP)
Hendrick, Sir Mark (Preston) (Lab/Co-op)
† Hollern, Kate (Blackburn) (Lab)
Jones, Darren (Bristol North West) (Lab)
† Metcalfe, Stephen (South Basildon and East Thurrock) (Con)
† Mortimer, Jill (Hartlepool) (Con)
† Mumby-Croft, Holly (Scunthorpe) (Con)
† Onwurah, Chi (Newcastle upon Tyne Central) (Lab)
Rimmer, Ms Marie (St Helens South and Whiston) (Lab)
† Sunderland, James (Bracknell) (Con)
† Watling, Giles (Clacton) (Con)
† Williams, Hywel (Arfon) (PC)
Bethan Harding, Committee Clerk
† attended the Committee
Public Bill Committee
Wednesday 1 March 2023
[Mrs Sheryll Murray in the Chair]
Powers of Attorney Bill
13:30
None Portrait The Chair
- Hansard -

Before we begin, I have a few preliminary reminders for the Committee. Please switch all electronic devices to silent. No food or drink is permitted during sittings, except for the water provided. Hansard colleagues will appreciate it if Members could email their speaking notes to hansardnotes@parliament.uk. My selection list for the sitting is available online and in the room. No amendments have been tabled. We will have a single debate on all the clauses and the schedule.

Clause 1

Lasting powers of attorney

Question proposed, That the clause stand part of the Bill.

None Portrait The Chair
- Hansard -

With this it will be convenient to consider the following:

Clauses 2 and 3 stand part.

That the schedule be the schedule to the Bill.

Stephen Metcalfe Portrait Stephen Metcalfe (South Basildon and East Thurrock) (Con)
- Hansard - - - Excerpts

It is a pleasure to serve under your chairmanship, Mrs Murray, I think for the first time. I also give my huge thanks to all the Members who have turned out to help with this short but important Bill.

Clause 1 will facilitate three things: first, improvements to safeguards in creating a lasting power of attorney; secondly, a simpler process for making and registering an LPA, increasing access for all involved; and, thirdly, making the Office of the Public Guardian more sustainable.

My Bill will increase access by allowing LPAs to be made and registered electronically, while—I emphasise this—also facilitating a new paper process. It is important not to overcomplicate the service, to ensure that everyone who wants an LPA has access to make one. In the new system, donors, attorneys and others involved will be able to use the channel—digital or paper—that best suits their needs. It will be a fluid system.

The new system must be balanced against the need for suitable safeguards, which my Bill also provides for through the introduction of identity verification; changes to the objection process, to ensure a more straightforward process aligned with the system that the Public Guardian operates now; and restricting who can apply to register the LPA to just the donor.

Finally, to ensure the sustainability of the Office of the Public Guardian, it is vital to reduce its reliance on paper. My Bill allows for a future system in which the LPA will be registered as an electronic document, and that electronic document will be used as evidence of registration, while still allowing physical proof for those who need it. The combination of changes realised by the schedule will enable the development of an easier but more secure process for people wishing to make and register a lasting power of attorney.

Clause 2 amends section 3 of the Powers of Attorney Act 1971 to enable chartered legal executives to certify a copy of a power of attorney. The process to certify a copy of a power of attorney does not require specialist legal skills, yet, under the existing legislation, chartered legal executives—lawyers who provide mainstream legal services—are not included among those who are able to do that. That does not make any sense and is not in line with the evolution in the legal services sector that has allowed chartered legal executives to carry out many of the same functions as solicitors. Indeed, during the pandemic, the Land Registry used its discretionary powers to accept copies of lasting powers of attorney certified by chartered legal executives.

For clarity, clause 2 extends to Scotland and Northern Ireland. The Government’s position is that no legislative consent motion is needed as the changes are consequential to the legislation in England and Wales. By amending the current legislation and enabling chartered legal executives to certify copies of powers of attorney, we will remove the barrier facing chartered legal executives in the provision of this service, increase the channels through which consumers can certify a copy of a power of attorney, and promote consumer choice and generate competition in the legal services market.

Clause 3 confirms the Bill’s short title, makes provision for the Bill to come into force and sets out its territorial extent. Clause 2, relating to chartered legal executives, will come into force two months after the Bill receives Royal Assent, while the remaining provisions, which relate to modernising lasting powers of attorney, will come into force by regulation.

Clause 1 and the schedule extend to England and Wales, save in respect to evidence of registration, dealt with by paragraph 8 of the schedule, which extends to Scotland and Northern Ireland. That relates to what can be accepted as evidence of an LPA registered in England and Wales and so aligns the new provisions for evidence with the territorial extent of the existing provisions of the Mental Capacity Act 2005 that are being amended.

Clause 2 also extends to Scotland and Northern Ireland, because it is about the acceptance of certified copies of powers of attorney made in England and Wales and therefore has the same territorial extent as the provision in the Powers of Attorney Act 1971 that is being amended.

Overall, the Bill relates to the process of making and registering an LPA in England and Wales. It will not affect the making of LPAs in Northern Ireland and Scotland, as they have their own mental capacity legislation, which makes similar provisions in those territories.

I will now talk in detail about each of the changes set out in the schedule, which fall loosely into five categories: simplifying the process of applying to register a lasting power of attorney; changing how people are notified that a lasting power of attorney has been submitted for registration; introducing identity checks; streamlining how objections to the registration of an LPA can be made; and providing for electronic evidence of the LPA, alongside physical evidence.

To make the application process simpler for donors, I am introducing three changes. My Bill removes the ability of an attorney to apply to register an LPA, thus maintaining donor control of the process. In the future, the donor will apply at the point they execute the document, and the signatures of other parties will be co-ordinated through the Office of the Public Guardian. The Bill also allows the fee to be taken at a different point. In combination, these changes will facilitate a hybrid system that allows different actors to use different channels and will therefore improve access to LPAs.

My Bill makes a small but necessary change to the notification process by requiring the Public Guardian, instead of the donor, to notify named persons, donors and attorneys when a completed LPA is ready to start the registration process. That simplifies the process for those applying to register their LPA and means that the Public Guardian can be certain that notifications have been sent to all parties so that they have the opportunity to raise any objections. That is a key safeguard. In exceptional circumstances, the Bill will allow the donor to ask the Public Guardian to disapply the notification requirements.

The change that will have the biggest impact on enhancing safeguards for the donor is the introduction of identity verification. My Bill gives the Public Guardian the ability to conduct identity checks on individuals involved in making, or who are named in, the lasting power of attorney, as a condition of its registration. If the identity cannot be verified, the LPA must not be registered without a direction from the Court of Protection. Regulations will set out the detail of who will be checked, when and how. I am confident that this will reduce the chances of any fraudulent LPAs being registered, and ultimately increase user confidence in LPAs and the system as a whole.

The Bill also strengthens safeguards through changes to the objection process. To simplify the process and to avoid discouraging genuine objections, I am introducing three changes. My Bill will allow anyone with an objection to register it. All objections will be directed to the Public Guardian in the first instance to be triaged and investigated where necessary. That formalises the process that the Public Guardian already operates. Additionally, third parties will now be able to lodge an objection from the time the Public Guardian is aware of the donor’s intention to make an LPA. Conditions for that will be set out in regulations. These changes will strengthen safeguards for the donor, particularly against abuse and undue pressure, by providing a clearer and more streamlined process for anyone objecting to the registration of a lasting power of attorney.

Peter Gibson Portrait Peter Gibson (Darlington) (Con)
- Hansard - - - Excerpts

I commend the work that my hon. Friend is doing on this important Bill. I declare an interest as a former solicitor. Having prepared many hundreds of lasting powers of attorney, I strongly welcome the changes that the Bill will make in terms of safeguards and improvements in processes.

However, I recently met Age UK, and I share some of its concerns about keeping access to paper-based systems for those who are digitally disadvantaged or not familiar with digital processes. Could my hon. Friend reassure us that those systems will remain accessible? I would also be failing in my duties as a lawyer, with my years of experience, if I did not put on record the recommendation that legal advice should, wherever possible, be taken to look at these documents.

Stephen Metcalfe Portrait Stephen Metcalfe
- Hansard - - - Excerpts

I am grateful to my hon. Friend for his intervention. He makes two important points. On the first, I emphasise that there is no intention at all—in my Bill or in any other thinking—to do away with the paper-based system. People will still be allowed to apply for an LPA using the paper-based system. However, the Bill introduces an electronic system, which will hopefully streamline the process and reduce the paper burden on the Office of the Public Guardian, making it more sustainable in the long term.

On my hon. Friend’s second point, seeking legal advice is a sound recommendation in many areas, but, particularly when creating something as powerful as a lasting power of attorney, it cannot be a bad idea to seek the advice and guidance of someone with professional qualifications and experience. For many people involved in making a lasting power of attorney, it may well be the first time they have done anything like it. Seeking the advice of an expert is sensible.

Finally, as we all know, LPAs are currently paper documents. To reduce reliance on paper, the schedule provides that all future LPAs will be electronic documents accessed through electronic means, as well the paper channel. The effects of that change will be increased efficiency, accessibility and confidence for users in the new system.

Chi Onwurah Portrait Chi Onwurah (Newcastle upon Tyne Central) (Lab)
- Hansard - - - Excerpts

I congratulate the hon. Gentleman on his Bill, which is an example of the much-needed modernisation of legal processes and—as he said—the efficiency and ease of access that digitalisation can bring. Does he agree that in addition to maintaining the paper route and providing efficiency and ease of access through the digital route, it is important to put greater emphasis on increasing digital literacy, particularly for under-represented groups?

Stephen Metcalfe Portrait Stephen Metcalfe
- Hansard - - - Excerpts

I am grateful to my hon. Friend—I say that deliberately, because she is—for her intervention, and I completely agree. We are moving to a digital world, but we are not all moving at the same pace, so it is important that we all promote digital awareness and digital accessibility where we can and help people to become digitally aware who have not had the opportunity before. We should always be thinking about how we can make people more aware of the services they could access if they had basic digital skills. This is an example of where, with digital skills, we can streamline the process, and that is important.

13:45
The effect of this change will be to increase efficiency and accessibility for users. A digital database facilitates changes to an LPA in real time, so that as the LPA is changed, there is a record of that, and the digital version will be a single source of truth for the status of a lasting power of attorney. However, I recognise that there may be circumstances where donors, attorneys and third parties are unable to access a digital service, and the schedule therefore provides for a measure in secondary legislation to allow for physical proof of an LPA to be recognised.
Overall, I want to modernise lasting powers of attorney to ensure that everyone who needs one can make one. It has never been more important to make this a quicker, easier to access and more secure system, and I believe that these changes will achieve those aims. The Bill also facilitates wider changes for the Public Guardian, to ensure that it is able to run a more streamlined process that delivers better value for its fee payers. For these reasons, I commend the Bill to the Committee.
Patrick Grady Portrait Patrick Grady (Glasgow North) (SNP)
- Hansard - - - Excerpts

I congratulate the hon. Member for South Basildon and East Thurrock on bringing forward the Bill and securing Government support. I have a few brief comments to make. Power of attorney provisions are increasingly valuable and necessary as the population ages and our interactions with different authorities and agencies become more complicated. The Bill’s simplification of the application process and introduction of further safeguards for applicants and donors are very welcome.

As the hon. Member recognised, the legal system in Scotland is devolved; in fact, it has had its own legal system since the Acts of Union. The aspects of the Bill that apply north of the border are largely technical and consequential in nature—for example, relating to the recognition of chartered legal executives. There are certain differences in how power of attorney arrangements work north and south of the border—for example, in how the application is witnessed and certified—and Scotland has its own Office of the Public Guardian. It is important that both systems are robust and that everybody—donors, or granters as they are known in Scotland, attorneys and the institutions they interact with—has full confidence in the integrity of the system.

I understand that there are some issues with mutual recognition north and south of the border. I am not sure whether the Bill is the correct vehicle to tackle them, but I wonder whether there is an opportunity to explore that before Report. If there is an opportunity to simplify and clarify the law in this area and ensure that there is mutual recognition north and south of the border, it is important that we take it. There are often cross-border issues for families and individuals and their attorneys. Many of us, myself included, have had constituency casework related to the complications that can arise when a family is in one part of the United Kingdom but care is being received or properties have to be managed in another part of the United Kingdom. Perhaps that could be considered before Report.

I am extremely glad that there is consensus on the Bill, and I am glad to be able to take part in the Committee and help it to progress. It cannot cover everything, and there are some wider issues that could be considered in the longer term—not least the variation in the charges that solicitors often apply when providing advice in this area. Ensuring that more people can safely and with confidence provide for a power of attorney in the long run will hopefully help people to save money and, more importantly, save some of the stress and confusion that can arise when a relative is incapacitated. We should all be working to raise awareness of the value that having the power of attorney in place can bring. I congratulate the hon. Member for South Basildon and East Thurrock again, and I look forward to the progress of the Bill.

Mike Freer Portrait The Parliamentary Under-Secretary of State for Justice (Mike Freer)
- Hansard - - - Excerpts

It is a great pleasure to serve under your chairmanship, Mrs Murray. I will try not to detain the Committee for long. I want to express my wholehearted support for the Bill of my hon. Friend the Member for South Basildon and East Thurrock, and I thank him for introducing it.

It is my privilege to be the Minister responsible for mental capacity, and I am particularly aware of how necessary these provisions are. A lasting power of attorney, or LPA, ensures that a person’s wishes and preferences can be considered and reduces the stress and burden on families when capacity is lost unexpectedly. However, despite the intention, the reality is that a lot of people find the current paper process for making LPAs stressful, confusing and bureaucratic. Having had experience of trying to put an LPA in place for both my mother and my mother-in-law, I can testify to how confusing, bureaucratic and difficult the process can be.

It is ever clearer that modernisation is no longer just an option, but an absolute necessity. It will help the Public Guardian to respond to changing societal needs and ultimately make the process for making and registering LPAs safer, simpler and more accessible. No doubt the introduction of a digital channel and an improved paper route will help to make an LPA more accessible for more people. The hybrid approach will provide flexibility between digital and paper channels to create a single LPA. However, it is the changes to the application process that my hon. Friend explained, such as removing the ability for anyone other than the donor to apply to register an LPA and allowing the Public Guardian to co-ordinate the completion of the document, which allow for that flexibility.

My hon. Friend outlined that in the new system, the LPA will be registered as an electronic document and accessed digitally; therefore, proof of an LPA can be provided and accessed instantly. Of course, as my hon. Friend also mentioned, physical proof of an LPA can still be requested for those unable to access a digital service. More generally, chartered legal executives will also be able to certify copies of any power of attorney, including LPAs, which they are unable to do under the current legislation. That will remedy an anomaly in the process that allows Chartered Institute of Legal Executives lawyers to participate in the creation of a power of attorney, but then renders them unable to certify as genuine a copy of the same document. Along with modernising the LPA, that will help to make sharing and using all LPAs, whether old or modernised, easier in the future.

As my hon. Friend covered, those measures relating to evidence of the LPA or power of attorney are the only sections of the Bill that extend to Scotland and Northern Ireland. I therefore want to take the time to affirm that it is the Government’s position that no legislative consent motion is needed, as changes are consequential to the legislation in England and Wales. I take the point the hon. Member for Glasgow North made, and if he wishes to contact my hon. Friend the Member for South Basildon and East Thurrock or myself afterwards, we will see if we can address any specific concerns he may have about the application in Scotland.

So far, I have spoken about the benefits of the Bill for the access and use of LPAs and powers of attorney generally, but digitisation will also help the Public Guardian to become more sustainable. Digitisation reduces the Public Guardian’s burden to scan, process and store enormous volumes of paper—11 tonnes at any one time. Manual checks can be automated and happen earlier; I am confident that that will create a speedier process, help to reduce errors in the LPA that prevent registration and ensure the Public Guardian is fit for the modern world.

As my hon. Friend has so eloquently explained, the Bill will guarantee access to a system that is simple to navigate and easier to complete. However, that must be balanced against the need for suitable safeguards. That is partly achieved through changes made by the Bill to notification and objection. Currently, the Public Guardian trusts that the applicant has notified people of their ability to object. Having the Public Guardian inform parties means it can be certain that notifications have been sent, increasing the protection provided.

What is more, the Bill simplifies the objection process by providing a single route for all objections, starting with the Public Guardian and ending at the Court of Protection. If required, the Court of Protection can step in. I share my hon. Friend’s view that formalising the existing process will increase protections for donors, due to clarity about where and how to express concerns about the registration of an LPA.

I am also delighted to see the introduction of identity verification for certain parties. That will help to protect donors and wider society from unauthorised access to people’s assets by reducing the risk of fraud. It is a significant increase in safeguards. The introduction of identity verification, alongside the changes to notification and objections, is a driving factor in why the Government support the Bill. It will embed robust safeguards throughout the process for making an LPA.

In closing, I reiterate my thanks to my hon. Friend the Member for South Basildon and East Thurrock for sponsoring this important Bill and confirm the Government’s continuing support for it. This may not be a long Bill, but its impact is far-reaching. It is therefore vital that we support the measures, and I am grateful to the Committee members who have spoken so helpfully. I look forward to engaging more as the Bill progresses through Parliament.

Stephen Metcalfe Portrait Stephen Metcalfe
- Hansard - - - Excerpts

I will add a few thanks to the Minister’s, in particular to my hon. Friend the Member for Darlington and the hon. Members for Newcastle upon Tyne Central and for Glasgow North for their contributions, and to all Members for their attendance and support. I thank the Minister for his positive support, all the officials who helped to bring the Bill to this stage, and you and your team, Mrs Murray, for keeping us all on track.

As the Minister and I have said, this is a relatively small and short Bill. It is tight in its provisions and scope, but it will have a huge impact on people’s ability to make a lasting power of attorney and it will introduce some particularly welcome safeguards. I am grateful for the support, and I hope that everyone will continue to support the Bill as it moves through the House.

My final thank you is to all the external organisations that have been in contact with me throughout the process of sponsoring the Bill. I thank them for their advice, their views and their general support for what we are trying to do.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clauses 2 and 3 ordered to stand part of the Bill.

Schedule agreed to.

Bill to be reported, without amendment.

13:58
Committee rose.

Powers of Attorney Bill

3rd reading
Friday 17th March 2023

(11 months, 3 weeks ago)

Commons Chamber
Read Full debate Powers of Attorney Act 2023 Read Hansard Text Read Debate Ministerial Extracts
Bill, not amended in the Public Bill Committee, considered.
Third Reading
12:07
Stephen Metcalfe Portrait Stephen Metcalfe (South Basildon and East Thurrock) (Con)
- Hansard - - - Excerpts

I beg to move, That the Bill be now read the Third time.

I am delighted not only to take my Bill through its Third Reading but to be here on the auspicious occasion of the passing of the Hunting Trophies (Import Prohibition) Bill, which is an important and valuable piece of legislation. If I have had any small part to play in that, I am very grateful.

Let me begin by thanking the Public Bill Committee, which met on 1 March to consider the Bill in detail. It was absolutely fantastic to see so many of us share the same goal of making it easier for people to create a lasting power of attorney with better protections, and to put in place a more sustainable process for the Office of the Public Guardian. I am delighted to confirm that my Bill passed Committee stage unamended. I am hopeful that the spirit of cross-party support that has remained since Second Reading will continue throughout the process until the Bill passes.

As I have said before, I believe that a lasting power of attorney is an incredibly powerful and useful document. It lets someone choose people they trust to support them and make decisions for them if they lose the mental capacity to make their own decisions in future. I make no apology for repeating the point that I have made at previous stages of the Bill. Modernisation is no longer an option but a necessity. I was grateful for the support of my hon. Friends the Members for Bracknell (James Sunderland) and for Broadland (Jerome Mayhew) on that matter on Second Reading.

However, I am aware that some people have concerns about modernisation. Since my Bill was introduced on 15 June last year, I have met organisations that wished to discuss the importance of increasing accessibility while improving safeguards and, practically, the concerns about continued access to paper routes. The latter was also raised in Committee by my hon. Friend the Member for Darlington (Peter Gibson), and I would like to reassure everyone that I am aware that some people are unable to use a digital system and will continue to need a paper version. The new system facilitated by my Bill will provide for a paper route to create a lasting power of attorney. It will be updated with the safeguards that are mirrored in the digital version that the Bill will create.

My hon. Friend the Member for Devizes (Danny Kruger) reflected on Second Reading on the fact that as a society we are moving more and more towards cashless transactions. I do not wish to open up the debate about the future of cash, as that is for a separate day. For now, if we accept that more and more transactions are online and digital, concerns were raised about how that would affect the elderly and possibly lead to their abuse. Because of the importance of that, I repeat that the Bill provides for a paper channel to continue to be available. In fact, it will go further and introduce a fluid system in which donors, attorneys and others involved can use the channel, digital or paper, that best suits their skills, confidence and access.

I am also acutely aware of the need for protections against abuse, especially for older people who are the main group making LPAs. My Bill will enhance safeguards in multiple ways, for example with the improvements to the notifications and objections process; by restricting applications to the donor; and through the introduction of identity verification.

As the hon. Member for Stockton North (Alex Cunningham) mentioned on Second Reading, there is a burden on the Office of the Public Guardian because of the high volume of paper LPAs it processes. Combined with the effect of the pandemic, error rates due to confusing paper forms and logistical problems in the application process, that has resulted in a backlog. I am confident that the provisions in the Bill and the changes it will facilitate, such as automated checks, will build resilience into the process for the OPG. That should significantly reduce the chances of backlogs forming in the future.

The Bill includes provisions to enable chartered legal executives to certify copies of powers of attorney. I am grateful for the support in this House for that initiative. The legal services market has evolved over the last half century since the current legislation was introduced. The Bill will bring the process for certifying copies of a power of attorney in line with modern realities in legal service provision. Consumers will also benefit from the increase in choice in accessing those services, which will plug any current unmet demand.

I thank the Minister for his support during the passage of the Bill. I know he agrees with me that these changes are urgently needed, so that LPAs and powers of attorney can continue to provide the support that people need. As I said, these are powerful documents, and the Bill will help to improve their sustainability, reliability and access.

I would also like to extend my gratitude to those who have raised questions and points during this process and to all the external organisations that have expressed interest in and support for these measures. I hope my Bill continues to progress well once it passes to the other place, so that an improved system can be implemented and delivered for the benefit of those we serve as soon as possible.

12:15
Patrick Grady Portrait Patrick Grady (Glasgow North) (SNP)
- Hansard - - - Excerpts

A very happy St Patrick’s Day to you, Madam Deputy Speaker. I congratulate the hon. Member for South Basildon and East Thurrock (Stephen Metcalfe) on the progress his Bill has made. I think all of us are quite relieved that we have made it to Third Reading at a respectable pace, after the House unanimously agreed on earlier Bills, particularly the Hunting Trophies (Import Prohibition) Bill, which was of great concern to many of my constituents and people across the country.

It has been a slightly unexpected pleasure to serve on the Public Bill Committee and then to follow the progress of the Bill. We do these things as favours to each other sometimes and then find that a Bill piques our interest and there is even more we can take forward. As the hon. Member for South Basildon and East Thurrock and others have recognised, powers of attorney provisions are increasingly valuable in the modern world, especially as the population ages and we interact in different ways with authorities and institutions. The Bill will make that process easier, especially for people in England. It will also introduce important new safeguards.

Most of the legislation in this area is devolved, and there are a number of differences between power of attorney provisions north and south of the border, but the Bill makes a number of changes in devolved areas. Despite the Government’s assessment in the explanatory notes, the Scottish Government have chosen to bring forward a legislative consent motion and a legislative consent memorandum. Private Members’ Bills are done slightly differently, but where the Government are keen to facilitate the passage of a Bill, they should perhaps make sure that officials north of the border are fully apprised of that, so that things can move as quickly as possible.

The Scottish Government intend to use that memorandum and motion to consent to the Bill, because they recognise the importance of the smooth operation of powers of attorney north and south of the border. The legislative consent memorandum says in paragraph 12:

“Consent is recommended, because the Bill is aligned with the Scottish Government’s emphasis on increasing accessibility to obtaining a power of attorney. As noted above, the changes that apply to Scotland will allow the record in the register of LPAs maintained by the Public Guardian in England and Wales to be used as sufficient proof of the contents of an instrument in any part of the United Kingdom including Scotland.”

That is an important provision in terms of the recognition of powers of attorney north and south of the border, and the Minister and I have had useful exchanges in Committee and since then about how Scottish powers of attorney are recognised in England.

The website of the Office of the Public Guardian in Scotland notes that a Scottish power of attorney

“can be used in England or Wales if an Organisation (e.g. a bank) accepts its authority, but if they do not things are more problematic. The Organisation may require an endorsement of the Scottish PoA from the English authorities”.

As I say, the Minister and I have had exchanges on this, and he has recognised in a letter to me that there is a need to ensure that institutions and organisations are aware of the legal status of Scottish powers of attorney in England and Wales. I hope he might be willing to put a copy of that letter in the Library of the House, so that other Members can see the detail. I accept that this Bill in particular is not the vehicle, and he argues that legislative change generally is probably not needed; it is more about raising awareness and understanding.

That is particularly important, not least because all of us will encounter the use of powers of attorney in the years to come. For many of us, that will be in our roles; the issue of cross-border recognition has cropped up in my casework from time to time. Increasingly, we will all find interactions with powers of attorney in our personal lives as well.

The Bill strengthens and simplifies the system for obtaining and using a power of attorney, especially in England. I congratulate the hon. Gentleman, and the Minister and his team, on their success in securing its passage.

00:00
James Wild Portrait James Wild (North West Norfolk) (Con)
- Hansard - - - Excerpts

I welcome the Bill and congratulate my hon. Friend the Member for South Basildon and East Thurrock (Stephen Metcalfe) on getting it to this stage and on securing cross-party and, importantly, Government support for it. I look forward to supporting its passage today. Although this Bill may not have attracted the same level of attention and celebrity endorsement as the Hunting Trophies (Import Prohibition) Bill, which I was pleased to support, it is none the less important. It makes provision on lasting powers of attorney and proof of instruments creating powers of attorney.

A lasting power of attorney is a vital legal tool that helps people to plan for their future. It lets the donor choose another person—the attorney—to support them and make decisions on their behalf if they lose the mental capacity to make them for themselves. That might be because of an illness such as dementia, for example, or a terrible accident. The Law Society says:

“LPAs are arguably one of the most important legal documents a person will make, because they delegate such wide-reaching powers over their life.”

For a friend, a relative, a partner or a solicitor, that is an incredible and immense responsibility to take on.

LPAs were introduced in 2007, through the Mental Capacity Act 2005, to balance the need to improve safeguards for the donor with the need to make it easier to secure an LPA. The 2005 Act also created the Office of the Public Guardian, which, as we have heard, is responsible for registering LPAs and taking action where there are concerns about an attorney. LPAs were introduced more than 15 years ago and, given the progress of technology and our move away from paper-based record-keeping, the case for change is clear. With LPAs, MCAs and OPGs, we are not short of TLAs—three-letter acronyms—today.

I am pleased that the Bill will bring much-needed modernisation to the process of making and registering lasting powers of attorney, making it easier for individuals to obtain certified copies of powers of attorney. It will create for customers a simpler and faster system that is more resilient to disruption. The modernisation will be made possible by enabling changes to the process to make and register an LPA, by introducing the requirement to verify identity as part of applying to register an LPA, and by streamlining how people can object to registrations. The Bill will also enable different processes and evidence to be accepted depending on whether registration for an LPA is made digitally, on paper, or with a mix of the two. I am pleased that my hon. Friend set out so clearly that the paper-based option will be retained. That is something that Age UK in particular has raised, and it will benefit my North West Norfolk constituents.

The Bill will mean that people find it simpler to create their LPA while, importantly, being protected—through regulations that are enabled by the Bill—from abuse of the powers that are offered. The public will also be better protected from fraud, and the OPG will be able to run a more streamlined process that delivers better value for its fee payers. The fee is currently a relatively modest £82, which is noteworthy given the level of responsibility involved. Overall, the measures will allow more individuals to retain control of their lives by planning for the future.

In 2001, the Ministry of Justice ran a consultation setting out the case for change in the light of the number of LPAs since their introduction. In 2014, for example, just over 390,000 LPAs were sent to the OPG for registration. By 2019, that number had more than doubled to just under 920,000. Increasingly, people expect to be able to access Government services online. It is striking that in 2019, the OPG received 19 million sheets of paper in the form of hard-copy LPAs, and posted out a similar amount. That is not a sustainable or sensible practice to continue.

LPAs are particularly useful for people with dementia. Statistics from the Alzheimer’s Society show that about 900,000 people live with dementia in the UK, and that figure is expected to rise to 1.6 million by 2040. Figures from Norfolk County Council show that in 2019, about 11,000 people with a dementia diagnosis were registered at practices in Norfolk and Waveney. By 2030, that figure is expected to double. Indeed, in King’s Lynn and west Norfolk, dementia prevalence is expected to increase by nearly 24% between 2019 and 2030. The Bill will help to ensure that the process for registering LPAs keeps pace with that expected increase in dementia, while we also, importantly, put medical funding into research to help to treat that condition.

I welcome the digitisation of the process, which will bring many benefits to improve access and speed of service, but we must ensure that there are robust and well-thought-through safeguards. Poor decision making by an attorney could mean the loss of all of someone’s assets or someone being put into a care home, or it could have other serious consequences. The balance between ease of use and protection has to be properly struck, but I am pleased to support the Bill to help to deliver much-needed improvements to the process.

12:24
Angela Richardson Portrait Angela Richardson (Guildford) (Con)
- Hansard - - - Excerpts

It is a privilege to follow the excellent speech of my hon. Friend the Member for North West Norfolk (James Wild) and to congratulate my hon. Friend the Member for South Basildon and East Thurrock (Stephen Metcalfe) on bringing forward this important legislation unamended to Third Reading.

Powers of attorney, specifically lasting powers of attorney, are incredibly powerful and useful appointments. They allow people to retain control over aspects of their lives in circumstances where they might not otherwise be able to make decisions or take actions. In particular, lasting powers of attorney ensure that people have the opportunity to make provision for a future where they may no longer have the mental capacity to understand what is happening to them and therefore to make decisions about the things that they care about.

We all know that our population is ageing and that, as my hon. Friend the Member for North West Norfolk illustrated with good statistics, the prevalence of dementia is increasing. For those people, such documents will become ever more important to ensure that they can continue to live the lives that they want to live. They will also be more important in protecting people who might otherwise be the target of fraud, scams and abuse. I have seen some terrible examples of that in my casework on behalf of Guildford constituents, where vulnerable people have been taken advantage of in so-called romance scams and similar, without the protection of someone who can look after their best interests.

As has been said, hon. Members on both sides of the House agree that the current situation is unsustainable. The Office of the Public Guardian carries out manual administration checks and stores 11 tonnes of paper at any one time. LPA applications are generally increasing, with the number submitted for registration more than doubling between 2014-15 and 2019-20. That creates an ever-increasing need for staff, equipment and storage space.

The ability to use a digital channel alongside the paper route to make and register an LPA would help to resolve some of those issues. Most of the current manual checks could be automated to speed up the time it takes for applications to be processed, which I know has been an issue. It would also increase the Office of the Public Guardian’s resilience to backlogs. It is important that some safeguards remain, as my hon. Friend the Member for South Basildon and East Thurrock mentioned. Importantly, the Bill achieves sustainability for the Office of the Public Guardian while keeping LPAs as affordable as possible for everyone in society.

12:24
Gagan Mohindra Portrait Mr Gagan Mohindra (South West Hertfordshire) (Con)
- Hansard - - - Excerpts

I commend my hon. Friend the Member for Guildford (Angela Richardson) for her excellent speech. It is a real honour to speak in support of my very good and long-standing friend, my hon. Friend the Member for South Basildon and East Thurrock (Stephen Metcalfe). I have known him for 20 years and he continues to be a leading political light in my eyes. I aspire to his lofty heights.

The Government have wanted to introduce such a Bill for a long time. During the pandemic, we saw the need for modernisation and how much it is now required. The critical point about the Bill is that it will always be difficult to see a loved one no longer being able to make their own decisions, so ensuring that their wishes are protected is essential. Making it quicker and easier to get a lasting power of attorney and smoothing out the logistical process must surely be the right thing to do.

Within South West Hertfordshire we saw the community rally round during the very difficult pandemic to support the most vulnerable in our area, and I saw how technology was able to help with allowing those people to get on with their lives. Within my own work programme, things such as offering virtual surgeries and meeting virtually with local organisations remain a critical tool for interacting with my community—something I am sure that colleagues around the House continue to use today.

There are some excellent organisations working in South West Hertfordshire and across the UK to help people with lasting power of attorney, but I want to mention Age UK. Every one of those organisations has said that simplifying the process would be a help to even more people. The problem is that, as we all know, the applicants who have to use the LPAs have said that since the pandemic the process of obtaining one has been cumbersome with all the relevant paperwork.

In particular, organising the paperwork presents logistical difficulties for people who have become used to technology. It can also be an expensive process if people feel the need to use a solicitor. There has been an increase of 50% in the waiting time for LPAs, from about 40 days to 82, and there is currently no method to track the progress of an application. I am in support of this Bill. A digital method of verifying witnesses for an LPA is possible, given technological advances.

The Government consulted on whether a witness is still a necessary part of the process, how to reduce the chances of an LPA application being rejected by the Office of the Public Guardian and whether an urgent service would be helpful. The consultation got 313 responses and the overall response was positive. Respondents supported a modernisation of the LPA service that offers a digital and, just as importantly, a paper channel.

In conclusion, modernising the LPA application system will allow applications to be processed more quickly and easily while putting digital protections in place to keep the same level of security, which will help to give people peace of mind as they approach what can be a very difficult task.

12:31
Nickie Aiken Portrait Nickie Aiken (Cities of London and Westminster) (Con)
- Hansard - - - Excerpts

It is an honour to speak on this Bill, brought forward and championed so ably by my hon. Friend the Member for South Basildon and East Thurrock (Stephen Metcalfe). It is always a pleasure to follow my hon. Friend the Member for South West Hertfordshire (Mr Mohindra), who spoke very cogently on the subject.

I am incredibly glad that this Bill has had full support from the Government during its passage through Parliament. After all, it is a wholly sensible Bill and will bring lasting powers of attorney into the 21st century. In fact, it builds on some sensible recommendations that the Office of the Public Guardian and the Ministry of Justice identified in their recent work on modernising LPAs.

I recently heard from a constituent of mine, Tim, who works as a volunteer for the Paperweight Trust, a charity that provides free services to those needing guidance on legal, financial and welfare issues. Tim is an expert on this subject, so I was interested to hear his observation that the Office of the Public Guardian is taking much longer to process LPAs. Based on his experience, he told me that, for many people, the complexity and accessibility are a constant worry when it comes to this kind of documentation.

Therefore, I want to make some observations. First, how will this Bill seek to address the problems that Tim has highlighted, and will it make a difference? The Bill will deliver two important changes to legislation around powers of attorney and add to the work in the report led by the Ministry of Justice. It will reform the process of making and registering a lasting power of attorney to make it safer, easier, and more sustainable. It will bolster safeguards and explicitly permit a third party to object to the registration of a lasting power of attorney, a very important protection. Moreover, it will modernise the process of filling in a lasting power of attorney, a move that—in my view—is very long overdue.

Secondly, it will widen the group of people who can provide certified copies of powers of attorney to include chartered legal executives. From my point of view, that is most welcome, and works to correct a historic omission: it will mean that chartered legal executives can certify alongside solicitors, which I hope will mean that we can speed up the process, because there will be more professionals involved in it. I say to my hon. Friend who is taking the Bill through Parliament, the hon. Member for South Basildon and East Thurrock, that these reforms are most welcome. Of course, digitalisation offers the opportunity to create a more efficient service for creating powers of attorney; however, that process needs to put protecting older and vulnerable individuals at its heart. To that end, I emphasise the need for any digital system to place a premium on accessibility. I hope that we will hear from the Minister on that point.

James Wild Portrait James Wild
- Hansard - - - Excerpts

So far in this debate, we have all talked about how we are going to be moving to a far more digital system. Unfortunately, the record of the public sector—and in fairness, equally, the private sector—in delivering IT systems has not always been as stellar as we might want. Having been on the Public Accounts Committee for two years, I can certainly attest to that being the case. Does my hon. Friend join me in looking forward to the Minister explaining in his comments where we are in the process of developing this digital system, which, according to the explanatory notes, will only cost £3 million? That is a relatively small figure, so I hope that it is all on track, but does my hon. Friend agree that that is very important?

Nickie Aiken Portrait Nickie Aiken
- Hansard - - - Excerpts

My hon. Friend is absolutely right to highlight those issues regarding the digitalisation of the whole process. We all know that Governments, no matter their political persuasion, do not always have the greatest record in improving digitalisation of this kind, so I look forward to hearing from the Minister on that point. As we all know, he is an able Minister, so I am sure that he is already ahead of the game and knows exactly what he is doing to improve the speed of that digitalisation while keeping it within budget.

The premium on accessibility will be absolutely key for people who are not too familiar with the internet; given that 25% of over-65s do not use the internet, that is a point that we have to make, though as we get older, we are more used to using the internet. A woman who is in her 50s, like I am, is very used to using the internet now. [Hon. Members: “Never!”] I thank my hon. Friends for their kind comments. Likewise, any approach to a multi-channel system needs to work just as efficiently as the digital option.

Gagan Mohindra Portrait Mr Mohindra
- Hansard - - - Excerpts

My hon. Friend is making a valuable contribution, as she always does. Does she share my concerns that if people who are not necessarily technology-advanced are seeking support in getting their applications through, there need to be relevant safeguards in place to ensure that those people are not being manipulated, as they would not necessarily have been if the system was purely a paper one?

Nickie Aiken Portrait Nickie Aiken
- Hansard - - - Excerpts

My hon. Friend makes a key point. The Ministry of Justice might want to look at what public-sector organisations, such as libraries and local authorities, can do to help support people—possibly older or more vulnerable people—who are not au fait with using the internet. That may be something for the Minister to consider eventually as this process continues.

However, I welcome the Bill and what it sets out to achieve. It is tough, and often heartbreaking, when loved ones lose the ability to make their own decisions as a result of mental incapacity. As such, a lasting power of attorney is one of the most important legal documents a person will make, so we need to get the legislation right. I will take this opportunity to provide my own experience with lasting power of attorney. I am the lasting power of attorney for my father and mother. I did that six years ago when my father was diagnosed with Alzheimer’s and it became obvious that he would not have the mental capacity to make decisions for himself as the condition progressed. At a point when he still had the capacity, we organised lasting powers of attorney on health and on the financial side. It is important to make the point that lasting power of attorney is so important in both areas—the financial side and health.

Chris Clarkson Portrait Chris Clarkson (Heywood and Middleton) (Con)
- Hansard - - - Excerpts

I am very interested to hear my hon. Friend’s experience with this process. Does she agree with me that, having been through the process, it is needlessly complicated?

Nickie Aiken Portrait Nickie Aiken
- Hansard - - - Excerpts

I thank my hon. Friend for his comments. We went through our family solicitor, who is somebody that we trust and who knew the family. My hon. Friend is absolutely right that the process can be long, and, when not using a solicitor, it can be quite unnerving for some people. It is such a massive and important document. From my own experience, when it came to the end of my father’s life, and there had to be major decisions made on whether to continue his treatment, the fact that I had the final say ensured that the family knew that we were making the decision for my father in his best interests. It was not left to medical professionals. I would absolutely trust a doctor or a medical professional to make that decision, but having the health power of attorney meant that I made the decision on his behalf.

Gagan Mohindra Portrait Mr Mohindra
- Hansard - - - Excerpts

My hon. Friend continues to amaze me with the quality of her speech and the points she makes. Does she agree with me that the fact we are discussing what some families may regard as a taboo subject, in this great Chamber, will hopefully give families up and down the country the confidence to start those conversations? As a result, if and when they need power of attorney, those difficult decisions and discussions will have happened well in advance.

Nickie Aiken Portrait Nickie Aiken
- Hansard - - - Excerpts

Again, my hon. Friend is absolutely right. I say to people in this House, and across the country, “Have the conversation now.” Having looked at the Bill and written my speech, I am going to have the conversation with my husband. We never know what is around the corner. I want to ensure that, if anything happened to me, my husband has the lasting power of attorney so that he can make the decisions both financially and for the benefit of my health—and vice versa.

That is what I learnt through the process with my father. When he sadly died last May, because I had the lasting power of attorney for the financial side I could help my mother with all the finances, which made it an easier transition. She had never had to do any financial planning or management in the household; it was always down to my dad. I could work with the insurance companies, the banks and the pension providers. It was a fairly seamless transition. One of the positives from the pandemic is that many pension providers and insurance companies will now accept the death certificate via email, so people do not have to keep posting so many copies of the death certificate. I hope the digitisation of the lasting power of attorney will have similar success in making the transition easier when people have to provide information to whoever they are dealing with on behalf of their loved one.

Simon Baynes Portrait Simon Baynes (Clwyd South) (Con)
- Hansard - - - Excerpts

I am struck by my hon. Friend’s speech and her reference to her father—I am very sorry about that situation. We had a similar experience with my mother-in-law; my wife and her siblings had lasting power of attorney, which was all the more important as she lived for many years with Alzheimer’s. A key point is that the speed with which lasting power of attorney is granted is incredibly important, because a person’s condition can sometimes deteriorate very quickly. Does my hon. Friend agree that this Bill is vital in considering ways in which we can speed up the process, which is the key point of digitisation?

Nickie Aiken Portrait Nickie Aiken
- Hansard - - - Excerpts

I agree 100%. We know the progress of conditions such as Alzheimer’s and dementia can be slow or rapid, so it is important that we make the process as quick as possible to give the person at the heart of the decision making the reassurance that their family will do everything in their best interest. It also gives the family the reassurance that they have the power to make sure their loved one is as comfortable as possible in their last years.

James Wild Portrait James Wild
- Hansard - - - Excerpts

My hon. Friend is being generous in taking interventions. Conversations about lasting power of attorney are very important, but does she agrees it is also important that more people talk about writing a will so that their financial affairs are in good order? It is on my to-do list every year, and I will do it very soon, but I have not got around to it. I encourage others to do as I say and not as I do.

Nickie Aiken Portrait Nickie Aiken
- Hansard - - - Excerpts

I absolutely agree. We never know what fate has in store for us, and I urge my hon. Friend to put writing his will and arranging a lasting power of attorney at the top of his list, and I promise that I will do the same. I urge everyone in this country to discuss with those closest to them whether they should arrange a lasting power of attorney for each other.

Chris Clarkson Portrait Chris Clarkson
- Hansard - - - Excerpts

My hon. Friend makes an important point that everyone should have these conversations, but not everyone can follow up on them because of the expense of, for example, getting legal advice to arrange a will or power of attorney. She says she was fortunate to be able to use a solicitor, but that will be too expensive for some people. Does she agree that the measures in the Bill will make it much easier for people to access lasting power of attorney without incurring the extra expense and difficulty?

Nickie Aiken Portrait Nickie Aiken
- Hansard - - - Excerpts

Again, I agree wholeheartedly with my hon. Friend. One of the reasons I support the Bill is that I think it will do that. It will give the reassurance we all need as human beings about what will happen at the end of life, or if things go wrong and we end up in hospital without the capacity to make a decision on ongoing treatment. These days, everything in our lives is done digitally, whether it is banking or insurance, and this Bill will enable our partner, a family member or a close associate to get into our bank account, if we are incapacitated for whatever reason, to look after our financial affairs so that our family’s lives can go on.

Stephen Metcalfe Portrait Stephen Metcalfe
- Hansard - - - Excerpts

I am grateful to my hon. Friend for supporting my Bill and being so eloquent in her explanation of some of its effects. She had just moved on to the digital aspect. One of the Bill’s effects is to create a digital record of lasting powers of attorney—a digital truth—that will be accessible for those wanting to check LPAs. Those are powerful documents, but there may come a point when someone wishes to take back that power, as the donor, from one of their attorneys and give it to someone else. At the moment, that record would exist in paper form. In future, there will be a digital version, which will be bang up to date. That is an important safeguard.

Nickie Aiken Portrait Nickie Aiken
- Hansard - - - Excerpts

I agree with my hon. Friend, who is responsible for the Bill. Everything we do with it has to improve the situation for those at the heart of the LPA and those who are caring for them. Of course, life changes and someone may be incapacitated from a health point of view but then recover, as we would hope. They could then take back that power. It is so important to have the flexibility and protection in future, so I absolutely agree with the point he makes.

I will now conclude, as I think I have been speaking for long enough. [Hon. Members: “More!”] I could speak for so much longer on this subject, but I know that other Members wish to support the Bill. I believe it does get things right, I support it and I hope to see it become law shortly.

12:51
Simon Baynes Portrait Simon Baynes (Clwyd South) (Con)
- Hansard - - - Excerpts

It is a pleasure and an honour to follow my hon. Friend the Member for Cities of London and Westminster (Nickie Aiken) and to support this Bill, which has been introduced by my hon. Friend the Member for South Basildon and East Thurrock (Stephen Metcalfe), who spoke with great vigour in advocating for it and with great experience and authority. I have to declare an interest, because in the merry-go-round of ministerial changes during the year I was briefly a Justice Minister and I conferred with him at the beginning of his journey on this Bill. I am not surprised, but I am delighted, to see the fantastic way in which he has brought it forward. I was also particularly impressed by the way in which he made reference in his speech to all the other people who had spoken during the earlier stages of the Bill. That showed a degree of respect, care and attention to detail in relation to our fellow Members. All of us who participate in the proceedings on these Bills, be it in a Bill Committee or on a sitting Friday, appreciate the sort of respect he has shown to people in bringing forward their ideas alongside his own.

To go back to the excellent speech made by my hon. Friend the Member for Cities of London and Westminster and to my earlier intervention, at the heart of this lies an incredibly difficult period in people’s lives. We are talking about processes, digitisation and paper alternatives, but at the heart of this is a time of great vulnerability for people: not only the person for whom the LPA is being sought, but their family and carers. My mother-in-law, like my hon. Friend’s father, suffered from Alzheimer’s. It is a difficult and confusing time; you do not quite know what to do. It is difficult to decide when to seek an LPA. It almost feels disrespectful to suggest that that person is not in control of their life.

Nickie Aiken Portrait Nickie Aiken
- Hansard - - - Excerpts

My hon. Friend is making an important point. Does he agree that, rather than waiting for someone to get into that situation, perhaps when they are in their 70s or 80s, it is perhaps time that we now—in our 30s, 40s or 50s— think ahead and put together an LPA now, to take away any embarrassment and upset?

Simon Baynes Portrait Simon Baynes
- Hansard - - - Excerpts

That is an extremely important point, to which I think my hon. Friend referred in her speech. I remember the difficulty we had in reaching the point at which my mother-in-law was actually diagnosed with Alzheimer’s. She had to go and have an MRI scan, which she was very scared of doing, and we felt that we were placing an impossible imposition on her by making her go and have the scan, but by then we knew there was something that really needed to be addressed. So there is not only the difficulty of making the decision to seek lasting power of attorney but what leads up to that, which may be the diagnosis of an illness, particularly a dementia-related illness. So I could not agree more with my hon. Friend about the importance of planning ahead.

Although many do not like to think or talk about it, some people will find themselves in circumstances in which they are no longer able to make their own decisions owing to a loss of mental capacity, and obviously the lasting power of attorney exists for that purpose. It was introduced in the Mental Capacity Act 2007 with the aim of making improvements in the previous system of enduring power of attorney, and it constitutes a legal agreement governed by the law on deeds and the Mental Capacity Act 2005. The 2005 Act is designed to protect and empower people who may lack the mental capacity to make their own decisions about their care, treatment and financial affairs, and LPAs have an important role within that framework. This is something that I think we all understand, and indeed have discussed already this morning.

As we have heard from my hon. Friend the Member for South Basildon and East Thurrock and many others who have spoken, the case for change is clear. The existing protections within the LPA system are losing their effectiveness as technology improves and society’s attitudes change. There have been a number of references today to the levels of digital technology use by older people. I do not dispute those statistics, but on the basis of my experience I think there may be more people than we realise at the older end of the age spectrum—silver surfers like me—who use computers and digital technology and consider them to be an important part of their lives, and I think that people are becoming more accustomed to obtaining Government services efficiently online.

When I was a parliamentary candidate about 10 years ago, there was a great deal of debate about benefits being paid directly into people’s bank accounts, which it was thought would cause difficulties for many people. There was a twin-track approach in that instance, like the one that my hon. Friend is suggesting now, with both a digital and a paper track, but what we found then was that in fairly short order people became used to having benefits paid directly into their accounts without their having to go to the post office or the bank to collect them in cash.

The covid-19 pandemic has of course accelerated this expectation, and has caused many people who were previously unfamiliar with digital technology to embrace new ways of interacting with organisations and public services. A point that may not have been made strongly enough today is that the last two or three years have changed the way in which many of us—particularly older people—find information and assistance.

Jane Stevenson Portrait Jane Stevenson (Wolverhampton North East) (Con)
- Hansard - - - Excerpts

I hope I am not going beyond the scope of the Bill, but does my hon. Friend share my concern about local council provision, which has to balance digital accessibility with maintaining access to many services for a generation who are less familiar with tech? On powers of attorney, there needs to be clarity for people who are approaching that time. It cannot be only digital; there needs to be physical help and access. I am concerned that in some services councils provide, such as parking, council tax or green bin collections, they are going digital slightly too quickly.

Simon Baynes Portrait Simon Baynes
- Hansard - - - Excerpts

I thank my hon. Friend for an excellent intervention, as always. She makes an extremely important point. Many constituents come to me in Clwyd South, as I am sure they come to other hon. Members, to ask for assistance in accessing such services. I agree that maintaining a paper route alongside a digital route is extremely important.

I do think, however, that the covid pandemic has changed how people embrace interactions with organisations and public services. That is reflected in user feedback that the paper-based process is cumbersome, bureaucratic and complex. I have to say that in the brief two months that I was a Minister I had a lot of interactions with the Office of the Public Guardian, and there are big backlogs in the granting of powers of attorney and lasting powers of attorney. I am sure that the Minister is addressing those backlogs with great efficiency and vigour, but I certainly think that the cumbersome, bureaucratic and complex nature of the process is a real issue. If the Bill can bring greater efficiency to the dispatch of business, it will make a big difference.

James Wild Portrait James Wild
- Hansard - - - Excerpts

From his experience with the Office of the Public Guardian, does my hon. Friend know whether its senior managers have bonuses and performance measures that are linked to delivering the target of a 20-week processing time? That target is so important to so many people, particularly those who are in a vulnerable situation.

Simon Baynes Portrait Simon Baynes
- Hansard - - - Excerpts

I think it is for the Minister to comment on that point, and I would not wish to tread upon his territory. However, from what I saw when I held the position, I am sure that the OPG is chasing the backlog with the greatest efficiency it can muster. One problem, which goes to the heart of the Bill, is that when people work from home, as they did at the OPG during covid, a paper-based system creates huge delay and problems. People can work on a digital system on their laptop at home, whereas with a paper-based system they really need to be in the office. The delay is perfectly fair and understandable in the light of the covid pandemic, which had a particularly acute effect in this case.

Stephen Metcalfe Portrait Stephen Metcalfe
- Hansard - - - Excerpts

I should apologise for not mentioning my hon. Friend in my speech, because I am very grateful for his help and support with my early work on the Bill last summer. I was very impressed by the knowledge and experience that he had gained in such a short time.

When my hon. Friend was the Minister, was he as surprised as I was while researching the Bill by the sheer volume of paper with which the Office of the Public Guardian has to deal? The forms are cumbersome, with many pages, and the number of applications runs into thousands daily. With 11 tonnes of paper floating around, it is not surprising that there is a backlog. I hope that the Bill will not only help to alleviate that backlog, but prevent it from happening ever again.

Simon Baynes Portrait Simon Baynes
- Hansard - - - Excerpts

I thank my hon. Friend for his intervention. Yes, I was surprised, but, as he said, it is a cumbersome paper document to fill in. Clearly, the necessity for lasting powers of attorney was increased by the covid pandemic. The fact that people were not able to see somebody in person exacerbated the situation. The forms are also not easy to fill in. The problem that the Office of the Public Guardian has, which is not its fault at all, is that if a form is not filled in correctly, it has to send it back again for changes to be made. Although we can say that that is just bureaucracy run wild, it is not at the end of the day, because this is a vital legal document. The care and support for vulnerable people that it provides means that this has to be done properly, so I fully agree with my hon. Friend.

The modernisation provides the opportunity to update the protections provided by the LPA to align with the new world and the ever-increasing move towards the use of digital technology. There are new opportunities to improve safeguards against fraud, abuse and undue pressure. At the same time, there is the opportunity to make the OPG more sustainable through increased efficiency, and make lasting powers of attorney more widely accessible through multiple channels of creation. Accessibility and safeguards are very important parts of that.

I have two other points to make, then I will call it a day. The consultation received 313 responses and the overall response to the proposals was positive. I am pleased that, as a result of the feedback, the Government feel confident that they can build a modernised LPA service. I take on board the point that some hon. Members have made that creating a new digital service can be quite complicated technologically. There are cases in which there is not a great precedent for that, but this is something that we need to do. Other systems have been created in local councils and central Government, so I am sure that it cannot be that difficult to do it. None the less, the retention of both a digital and paper channel is vital.

I wish to finish by referring to comments made by Stephanie Boyce, the president of the Law Society. My hon. Friend the Member for North West Norfolk (James Wild) also referred to her in his excellent speech earlier. She said:

“LPAs are arguably one of the most important legal documents that a person will make because they delegate such wide-reaching powers over their life.

The consequence of an attorney making a poor decision could be the loss of all their assets, being put into a care home against their current or past wishes, or even their premature death.

We welcome the MoJ’s commitment to improve the speed and accuracy of making an LPA, as well as to continue to provide a paper service. Many people—such as those in care homes or people with learning difficulties—will continue to need to make an LPA via a paper process.

We are pleased the Government is looking at proposals to improve support for those who will struggle with using digital channels, as more needs to be done to ensure the reforms do not negatively impact vulnerable, disabled or older people.”

That is clearly an authoritative voice in support of the Bill tabled by my hon. Friend the Member for South Basildon and East Thurrock and sums up very well how I and, I suspect, many other people here today feel about it.

In conclusion, I wish to thank my hon. Friend again and pay my respect to him for introducing the Bill and for improving the performance of LPAs to the benefit of many vulnerable people, across the whole of the United Kingdom, at a very difficult time in their lives.

13:08
Chris Clarkson Portrait Chris Clarkson (Heywood and Middleton) (Con)
- Hansard - - - Excerpts

It is a pleasure to follow for the second time today my hon. Friend the Member for Clwyd South (Simon Baynes). As warm-up acts go, it really is quite unfair to follow somebody so articulate and so well-considered twice and try to look good by comparison.

I wish to pay tribute to, and thank, my hon. Friend the Member for South Basildon and East Thurrock (Stephen Metcalfe) for introducing this Bill. I have had the pleasure of participating in the Science and Technology Committee and various other endeavours with him. I know that he takes very seriously any endeavour in which he participates, and this has all the hallmarks of his usual excellent work.

The Bill is pragmatic—it is pragmatism at its finest—as it addresses the key issues and gaps in the current LPA application process through a combination of good sense and innovative technology. I was struck by the fact that the Bill passed its Committee stage on St David’s day and it is having its Third Reading on St Patrick’s day—happy St Patrick’s day, Mr Deputy Speaker. I hope that its next stage will be closer to St George’s day than it is to St Andrew’s day, because we cannot wait for this much longer.

The measures in the Bill will help to reduce administrative burdens and minimise the likelihood of application errors which, as we have heard, can be tortuous and drag the process out for far too long. Most importantly, they will ease the burdens on applicants and their loved ones who find themselves in these unfortunate circumstances. As we heard from my hon. Friends the Members for Cities of London and Westminster (Nickie Aiken) and for Clwyd South, sometimes these situations can move extremely quickly. When someone is going through a complex and tortuous process, the emotional burden can make it too much to complete the process, leading to the very worst of outcomes.

The Law Society considers these to be some of the most important legal documents that people will ever sign. To that end, I welcome the provision to allow chartered legal executives to perform certification. That will provide more choice and will be much more affordable for people. One of the perversities of the process is that sometimes people feel that they have to commission a solicitor to go through the process and that can be expensive. Someone on a modest income may have financial assets to protect, such as a house, and the wellbeing of a loved one to consider, but may not have the disposable income to get a solicitor. It is wrong that some people may be effectively priced out of the system, and the Bill will go a long way to removing some of the barriers that people have to accessing it.

A case in which that happened came across my desk not long ago. A constituent wrote to me about his experience of a delayed LPA process. During the height of the covid-19 backlog in 2021, I was contacted by a man who had been waiting for more than five months for a decision on his LPA application for his 91-year-old mother who was suffering from dementia. Weary of the process and the delays, my constituent hired a solicitor to complete the application. He had been assured that it was filed correctly. On Second Reading, my hon. Friend the Member for Blyth Valley (Ian Levy) flagged a similar case. My constituent waited months for the application decision while his mother’s mental health deteriorated and she was no longer able to manage her finances or health-related arrangements. It then turned out that an error had been made in the process by the solicitor, the forms had all been returned and the process had been in abeyance. My hon. Friend mentioned that he had encountered a similar situation when undertaking this process for a loved one, and he is himself legally qualified. That is how mystifying the process can be. I too have a legal background and have taken a cursory look at what the process involves: it scares the living whatsits out of me. As my constituent’s mother’s dementia became more severe, she had no concept of the value of money or how to pay bills, and was acutely vulnerable to cold callers and scammers, but there were no protections in place for her.

My constituent and his mother are not the only ones dealing with the delays. I am acutely aware that people up and down the country are waiting for certainty. We have all had the conversation—people put off the decision, as they do in making a will, because they do not like to think about their own mortality. They are always waiting for the next time. When my dad was diagnosed with cancer, fairly late, none of these things had been done because everybody thinks that they will live for ever and will get around to it tomorrow. I say to my hon. Friend the Member for North West Norfolk (James Wild), “Get that will sorted asap!”

James Wild Portrait James Wild
- Hansard - - - Excerpts

I am happy to confirm that I will have a conversation with a solicitor to draw up that will next Friday.

Chris Clarkson Portrait Chris Clarkson
- Hansard - - - Excerpts

Being a good friend of his wife, I am sure she will be very pleased and putting roller skates at the top of the stairs after that date—[Laughter.]

The hon. Member for Glasgow North (Patrick Grady) made the interesting point that in some circumstances people do not recognise or accept Scottish lasting powers of attorney. As he probably knows, I got my legal education at Dundee, which is one of the few universities that dual-qualifies its students, so I have a particular interest in ensuring that the two jurisdictions work as closely together as they can. The reality is that most people, when relying on a legal instrument, do not really care whether it is a solicitor in Glasgow or Manchester; they just want to know that their loved one will be looked after. Similarly, people move across the border and have family on both sides. I would welcome a conversation with the hon. Gentleman outside this debate about how we can streamline the process to ensure that this place and the devolved Administrations have some sort of framework to allow it to work properly. I appreciate that there is a legislative consent motion for the Bill.

Patrick Grady Portrait Patrick Grady
- Hansard - - - Excerpts

I am happy to pick this up with the hon. Gentleman. We recognise that the Bill is not quite the vehicle to deal with this issue in legislative terms, but it has shone a light on the importance of mutual recognition south of the border and of people having powers of attorney in the first place. I assure him that we are all working together on this, and there is consensus.

Chris Clarkson Portrait Chris Clarkson
- Hansard - - - Excerpts

I thank the hon. Gentleman for his intervention and completely agree; there is an outbreak of consensus across the House. These are such important and necessary changes.

I am pleased that my hon. Friend the Member for South Basildon and East Thurrock has made provision for maintaining the paper route, with a fluid system in which it is possible to use both paper and digital. It is not just older people who sometimes struggle with accessing or using technology, although I have been approached repeatedly by constituents who are upset or concerned that they are not able to access the full range of services from various providers for that reason. There is also a digital divide. I represent a constituency that is not particularly affluent. There are people who simply do not have access to the technology or might not have had sufficient training in using it to feel confident going through this process, whereas if somebody can sit down with them and go through a form, they have the certainty that it is being dealt with properly, so I am pleased that my hon. Friend has maintained that route.

The Bill strikes the balance between improving the efficiency and processing times of applications and minimising the dangers of fraud. These circumstances are never easy—they are often some of the most heartbreaking and challenging situations, where loved ones are simply losing capacity and people have to make difficult decisions about what happens to them next. The Bill is a step in the right direction. It eases the burdens on individuals and takes away some of that difficulty and stress. It removes some of the expense, which blocks some people from accessing this, and gives people flexibility and choice. I strongly commend the Bill to the House and thank my hon. Friend the Member for South Basildon and East Thurrock for his diligent work on it.

13:16
Anna Firth Portrait Anna Firth (Southend West) (Con)
- Hansard - - - Excerpts

It is a pleasure to speak in support of this incredibly important Bill. I pay tribute to the brilliant speech we just heard from my hon. Friend the Member for Heywood and Middleton (Chris Clarkson), who spoke with such fluency and detail about this topic that there is little anyone now needs to say. That puts me in the difficult position of trying to follow him, but there are a couple of points that I want to emphasise.

I am extremely pleased to see my hon. Friend the Member for Castle Point (Rebecca Harris) on the Treasury Bench and to see my hon. Friend the Member for South Basildon and East Thurrock (Stephen Metcalfe), whose Bill we are supporting today. It is terribly important to have such a strong showing from Essex when discussing this important topic, and that is not just some “TOWIE”, collegiate Essex chest-beating, important though that always is. It is because 21% of people in Essex are over 65, compared with just 18.5% in England as a whole. With that higher than average age profile, there is a higher call for lasting powers of eternity—sorry, attorney; I am going off in another direction!

That thread of evidence runs through Essex. Some 21% of my constituents are aged 65 and over, and 1.5% are over 90. If we look at age-related disease in the new powerhouse city of Southend and picturesque Leigh-on-Sea, we see that 1.2% of people are registered as having dementia, which is 50% higher than across the country as a whole. That makes the Bill incredibly important for people in Essex. While we do not like to talk or think about such things, clearly it is vital for my constituents that their rights and freedoms are protected and that they can take early action to appoint people they trust to act on their behalf.

My hon. Friend the Member for Clwyd South (Simon Baynes) also spoke brilliantly—so brilliantly that I had to write down the point he made. He is right to say that the existing protections within the lasting powers of attorney system are losing their effectiveness as technology improves and society’s attitudes change. People are now accustomed to being able to obtain Government services online; not only are we working online much more, but we want the convenience of being able to fill in the forms when we happen to have a spare half-hour or hour, whether morning, noon, night or even in the wee small hours. The system has to come up to date and become less cumbersome, bureaucratic and complex.

In particular, the requirement to sign the lasting powers of attorney in a particular order presents many logistical difficulties. I remember well with my mother’s and father-in-law’s powers of attorney how all the documents turned up and we needed to focus and get them in the right order. If we had all done it at the same time online, it would have been so much easier. I am delighted that this Bill is before the House and that it will facilitate three things: first, and importantly, improvements to safeguards; secondly, a simpler process and better access for all involved; and, thirdly, making the Office of the Public Guardian more sustainable.

The only word of warning I would add is about ensuring that there is support for people going through the process electronically. That is why I am particularly pleased to hear that we will have both a digital and a paper channel available. I think of my own mother, who is an academic doctor in her own right and a powerhouse in her 80s; the fact that it was a paper process, and that she did get a lawyer, put her in control and meant that she understood it all. Even though she was doing something that she perhaps did not particularly want to be thinking about, she was in control.

My slight worry is that, if we were to go fully digital, people might feel additional stress and pressure at a time when they are perhaps considering their own mortality—not the happiest of moments—and they would probably have to turn for help to the very people to whom they were looking to give the power of attorney.

Jane Stevenson Portrait Jane Stevenson
- Hansard - - - Excerpts

My hon. Friend is making an excellent speech and I thank her for her tribute to her mother, who sounds like an inspirational woman. My mother is also in her 80s and is very tech-minded—she is a bit of a silver surfer powerhouse. Does my hon. Friend agree, however, that as we move to digital, especially in provisions for older people, we must also raise awareness of any scams and any potential abuses or misuses of that new technology, and that education is crucial?

Anna Firth Portrait Anna Firth
- Hansard - - - Excerpts

I am delighted that my hon. Friend has made that point, because I was about to come on to the two other issues with digitisation and why it is so good that we are keeping the paper channel for the time being. One issue is the 8 million-odd people who are not online at all, and the other issue is scams. Even my mother often calls me to run through something that someone has rung her up about or put on the computer. She needs that extra person to say, “That is complete nonsense.” She is lucky that she has family around her to do that, but there are plenty of people in their 80s who do not. I agree with my hon. Friend’s point.

Much has been said—almost everything that could be said—in support of this important Bill, which leaves me to say only, once again, that I am delighted to support it and to see support from hon. Members on both sides of the House. It is an important change to the legislation that will make a genuine improvement to the lives of my constituents in Southend West and will provide them, I hope, with the peace of mind that they need to ensure that their wishes, values and views will be represented, even when they can no longer make decisions for themselves.

Roger Gale Portrait Mr Deputy Speaker (Sir Roger Gale)
- Hansard - - - Excerpts

I call the Opposition Front-Bench spokesperson.

13:24
Steve Reed Portrait Steve Reed (Croydon North) (Lab/Co-op)
- Hansard - - - Excerpts

I start by wishing right hon. and hon. Members, and you, Mr Deputy Speaker, a happy St Patrick’s Day. I congratulate the hon. Member for South Basildon and East Thurrock (Stephen Metcalfe) on securing his private Member’s Bill and on his success in progressing it through the legislative stages with Government support. We look forward to that continuing in the other place.

We have had an interesting debate. I congratulate hon. Members who have taken part and made important contributions. The provisions in the Bill are much needed and Labour is pleased to support them. A lasting power of attorney ensures that an individual’s personal wishes and preferences can be considered when capacity is lost, which can massively reduce the stress and anxiety for their family through an extraordinarily difficult time. The process for making and registering a lasting power of attorney, however, has long been due an update. The current paper-based process is extremely confusing and bureaucratic, and often increases rather than reduces the family’s stress.

We therefore wholeheartedly welcome the modernising measures that the hon. Member has brought before the House. We need to plan now for the challenges that will face our legal system in the coming decades. I hope that these changes will help to future-proof our system and ensure that the caseload of the Office of the Public Guardian, which is already beset by delays and backlogs, does not become completely unmanageable as our population continues to age and the number of people living with illnesses that affect capacity increases.

Currently, about 900,000 people in the UK have a diagnosis of dementia, and almost every hon. Member present will know someone living with that incredibly destructive and debilitating condition. According to Dementia UK, that number will rise to more than 1 million people by 2025, and it is projected that it will have increased to more than 1.5 million by 2040. It is clear that the need and demand for lasting powers of attorney will increase significantly in the coming years, so the creation of a digital process to streamline much of the work is a necessity. I was astonished to read in the Minister’s response in Committee that the paper burden on the Office of the Public Guardian stands as high as 11 tonnes of paper at any one time, which is clearly unsustainable and certainly not how a modern Government body should be working.

I am glad that the hon. Member has ensured that the paper route will remain in place for all those who need it. Current figures suggest that about a quarter of those over 65 do not have easy access to the internet. We are all aware of the challenges that our digitally excluded constituents can face when trying to engage with online Government systems. As we have discussed, applying for an LPA is a stressful and difficult process at the best of times, so it is right that the paper route is kept open so that our constituents can apply through whichever means most suits them.

I am also pleased that the Bill will amend section 3 of the Powers of Attorney Act 1971 to enable chartered legal executives to certify copies of powers of attorney. They are legal professionals who can carry out many of the same services as solicitors, so it is good to see that inconsistency being addressed.

Finally, I turn to the issue of safeguards in the process. The hon. Member’s Bill builds in a number of welcome safeguards, including the introduction of identity verification, restricting who can apply to register the LPA and changes to the objections process. However, the Law Society has some additional concerns around safeguarding and it has suggested several additional measures that it believes would help safeguard vulnerable people from exploitation. I would be grateful to hear the Minister’s thoughts on these matters when he responds at the end of the debate.

Has the Minister considered amending the Mental Capacity Act 2005 to make it clear that the certificate provider has a responsibility to confirm that the donor has the mental capacity to make an LPA? Can he confirm whether future guidance on the role of the certificate provider will include questions for them to ask the donor that will test whether they can rely on the presumption of capacity? Finally, what steps is the Minister taking to ensure a certificate completed by a certificate provider for an LPA application shows that the certificate provider has been satisfied that the donor understands the information relevant to the decision to execute the LPA, can retain that information, and is able to use and weigh up that information as part of the process of making that decision?

We welcome the Bill of the hon. Member for South Basildon and East Thurrock, but it is clear that more can be done to improve matters of safeguarding in relation to LPAs. Today’s Bill is certainly a step in the right direction: we need a lasting power of attorney system that is fit for the future and protects the vulnerable individuals it is intended to serve.

13:31
Mike Freer Portrait The Parliamentary Under-Secretary of State for Justice (Mike Freer)
- Hansard - - - Excerpts

First, I thank my hon. Friend the Member for South Basildon and East Thurrock (Stephen Metcalfe) for his sterling work on this valuable Bill in steering it through to this stage; he has done an amazing amount of work in the background and in the Chamber and in Committee to ensure it has obtained cross-party support, and I am extremely grateful for that.

I am sure I speak on behalf of many in saying that it is difficult to talk about and plan for a time when we might no longer be able to make our own decisions due to the loss of mental capacity. It is clear that we all recognise that a lasting power of attorney is a vital resource. We also recognise the importance of ensuring that the process for making one has sufficient safeguards while remaining accessible and efficient. As my hon. Friend highlighted, however, there are a number of problems facing the current system for making and registering an LPA. These problems can be summarised in three points: outdated safeguards; confusing paper forms; and an unsustainable volume of forms for the Office of the Public Guardian to deal with. The service needs to be modernised: the volume of paper is such that the system is rapidly reaching the point where it is no longer fit for purpose.

The Bill effectively tackles those problems by facilitating changes to the service to make and register an LPA. The introduction of a digital channel will make it easier for users to create and register their LPA. However, I hope my hon. Friend has reassured those with concerns that modernisation does not mean removing all traces of paper; instead, it promotes an enhanced paper channel so that donors, attorneys and others involved can have a choice of using a digital or paper route, depending on their needs. I am greatly in favour of this fluid system as it is important to increase access to this important service so that everyone who wants or needs an LPA can have one.

My hon. Friend has also eloquently summarised ways in which this Bill strengthens protections for the donor. It gives assurances that the process for making an LPA has sufficient safeguards, for example allowing anyone with a legitimate concern to raise an objection with the public guardian. Along with restricting who can apply to register an LPA just to the donor and the introduction of identity checks, the changes will build in more confidence that the system will better protect individuals from coercion or abuse.

It is important to ensure that the public guardian can successfully operate the new service. I am grateful for my hon. Friend’s comments about the current burden on the public guardian. I have seen for myself when visiting the Office of the Public Guardian the receipt of 4,000 envelopes a day, each containing 18 pages of paper—that is nearly 80,000 papers a day having to be processed. A number of colleagues have commented on the backlog. I can reassure colleagues that the Office of the Public Guardian has been working throughout covid. It does use technology: it uses a three-shift system to ensure that the office is manned for up to 18 hours a day, to ensure that these vital applications are processed as safely, as securely, and as fast as possible. However, the use of electronic registration for LPAs will help reduce that burden and build resilience into the process, making the public guardian much more sustainable.

I should also mention the support that these provisions have received. It is especially pleasing that everyone supports chartered legal executives being allowed to certify copies of the power of attorney. I agree with what my hon. Friend said about the utility of that provision. I recognise that a power of attorney is a very important legal document and that it is important to maintain public confidence in the security of the process, but let me also say quite clearly that the proposed change to the legislation does not affect the contents of the power of attorney. It ensures that chartered legal executives who support their clients to prepare the original document can also legitimately certify that a copy is a true and complete copy of the original.

Before closing, I will address some of the issues raised by Members. The shadow Secretary of State for Justice, the hon. Member for Croydon North (Steve Reed)—I am pleased to see him in his place today—raised the issue of capacity assessment. That is quite a detailed issue, so I will write to the hon. Gentleman with much more detail, but the certificate provider is required to ensure that the donor understands the purpose of the LPA and the scope of the authority conferred under it. Obviously, there is a raft of other provisions, so without detaining the House, I will ensure that the shadow Secretary of State gets a full response in due course.

The hon. Member for Glasgow North (Patrick Grady) raised a very good point, both today and in Committee, about the recognition of Scottish powers of attorney in England and Wales. I can confirm that legislation is already in place that allows for the recognition of Scottish powers of attorney in England and Wales. Paragraph 13 of schedule 3 to the 2005 Act provides that where an individual is habitually resident in another country to which England and Wales is a connected country—which would include Scotland—the law applicable to the power’s existence is the law of the other country, so both are recognised. However, I accept that institutions do not always recognise that duality. Not only will we address that point as part of our engagement, particularly with banks and the insurance sector, to ensure that those organisations are aware of the new changes we are making, but we will reiterate the legitimacy of Scottish powers of attorney. As requested, I will place a copy of that letter in the Library.

My hon. Friend the Member for North West Norfolk (James Wild) quite rightly welcomed the retention of the paper process. I would also say that the digital process is increasingly important if we are to ensure that the Office of the Public Guardian is fit for purpose. My hon. Friend asked what stage we are at with the new digital system; the development of that system is ongoing, and the cost given in the explanatory notes, which he mentioned, is correct. I know he has spent some considerable time looking at IT problems that the Ministry of Justice is involved in, and if he wishes it, I am happy to ensure that we can have a more detailed briefing on how the new system will work.

My hon. Friend the Member for Guildford (Angela Richardson) also raised the issue of the 11 tonnes of paper, but having seen the scanners in operation, I can reassure her that it is quite an impressive operation. Literally every envelope with its 18 pages is scanned through at speed, so that the processers can see them online. My hon. Friend the Member for South West Hertfordshire (Mr Mohindra) mentioned Age UK. It is correct to pay tribute to the work that that charity has done, and it did recognise that the paperwork system is cumbersome. That paperwork is often being embarked upon at a difficult stage, and it is right that we streamline it but, equally, ensure that the verification of the people involved is as secure as possible. I reassure my hon. Friend that there is a system—I keep calling it the one-touch system—through which one can check on where the system is, and on verification.

I cannot mention all hon. Members’ contributions to the debate, but I do want to respond to the speech of my hon. Friend the Member for Cities of London and Westminster (Nickie Aiken). So often in this place, we deal with dry, technical issues, but our job is not just to vote things through: it is to ensure that the legislation we are voting for is rooted in changing people’s lives. The personal testimony that my hon. Friend brought to the debate demonstrated why we are here: it makes for better law if we have personal experience or testimony from those we know—from our constituents—to bring our legislation to life. I reiterate, on her point about battling institutions, that we will continue to engage with banks and insurance companies. I thank her for her personal and powerful perspective.

Finally, I thank all colleagues for their support and all those who took part in the debate—I am sorry that I cannot address all their points. I thank the officials who have assisted in the passage of the Bill, as well as the previous Ministers who have been involved in the process. I hope that the Bill’s passage has made it clear that modernisation is a necessity for improving user experience, protections and accessibility.

Let me take this final opportunity to reiterate the Government’s wholehearted support for the Bill and our thanks to our hon. Friend the Member for South Basildon and East Thurrock.

00:01
Stephen Metcalfe Portrait Stephen Metcalfe
- Hansard - - - Excerpts

With the leave of the House, I will say a final few words. It has been an absolute privilege to take the Bill through the House. I am sure that we all wish it well on its journey into the other place, where I am sure—or I hope—that it will receive the same level of support.

As we have heard, with only a small number of clauses, the Bill is relatively narrow in scope, but it is none the less an important Bill that will do some important things. It will put the Office of the Public Guardian on a sustainable footing, create a digital channel for the creation, registration and checking of lasting powers of attorney, and allow chartered legal executives to have a role in that process.

I thank all those who have helped to get the Bill to this point, particularly the Minister and the shadow Minister, and, of course, all the officials and those from outside organisations who have offered help and advice. I thank, of course, my colleagues from both sides of the House, including the hon. Member for Glasgow North (Patrick Grady) and my hon. Friends the Members for North West Norfolk (James Wild), for Guildford (Angela Richardson), for South West Hertfordshire (Mr Mohindra), for Cities of London and Westminster (Nickie Aiken), for Clwyd South (Simon Baynes), for Heywood and Middleton (Chris Clarkson) and for Southend West (Anna Firth). I will not go through why they have all made important contributions to the debate, but—needless to say—I give a big thank you to them for their support, and to all those who served on the Committee, which allowed us to get to this point.

I look forward to the Bill’s becoming law in due course and making the system of creating and maintaining lasting powers of attorney more sustainable and more deliverable in future.

Question put and agreed to.

Bill accordingly read the Third time and passed.

Powers of Attorney Bill

1st reading
Monday 20th March 2023

(11 months, 2 weeks ago)

Lords Chamber
Read Full debate Powers of Attorney Act 2023 Read Hansard Text
First Reading
15:35
The Bill was brought from the Commons, read a first time and ordered to be printed.

Powers of Attorney Bill

2nd reading
Friday 16th June 2023

(8 months, 2 weeks ago)

Lords Chamber
Read Full debate Powers of Attorney Act 2023 Read Hansard Text Read Debate Ministerial Extracts
Second Reading
13:20
Moved by
Viscount Stansgate Portrait Viscount Stansgate
- Hansard - - - Excerpts

That the Bill be now read a second time.

Viscount Stansgate Portrait Viscount Stansgate (Lab)
- Hansard - - - Excerpts

My Lords, the Bill will modernise the process for making and registering lasting powers of attorney and will enable chartered legal executives to certify copies of powers of attorney. I welcome all Members here today, whether to listen to or participate in this debate. This is a good example of an entirely bipartisan Private Member’s Bill. It passed the other place with all-party support and without amendment. It was introduced and steered through by my good friend and colleague Mr Stephen Metcalfe, the Member for South Basildon and East Thurrock, who is a government Back-Bencher. It is now being shepherded through this House by an opposition Back-Bencher—the very definition of bipartisanship. I am delighted that Stephen Metcalfe is present today to watch our proceedings.

Before I get to the Bill, I want to establish something at the beginning. The Bill affects the lives of people all over the country. Over 6 million lasting powers of attorney are currently lodged with the Office of the Public Guardian—frankly, I found that an astonishing number when I first discovered it. That means that families up and down the country have an interest in the subject of today’s debate and I dare say that Members of your Lordships’ House have, both personally and professionally, had personal contact with the LPA process. I should add that I am one of them. A few years ago, my younger brothers and sister took out a lasting power of attorney in respect of our dad, with his full agreement, although it was not necessary in the end.

Turning to the Bill, I refer all Members to the excellent House of Lords Library briefing, which provides everything that they might need to know. Clause 1 introduces the schedule to the Bill and amends the Mental Capacity Act 2005 for making and registering LPAs. Clause 2 adds chartered legal executives to the list of those who can certify copies of LPAs. Clause 3 sets out the Bill’s territorial extent and application—basically, the Bill extends to England and Wales only and it will come into force in stages.

What is an LPA and what is its significance? An LPA is a legal document that helps people to plan for their future. It allows an individual, known as the “donor”, to plan for circumstances where they can no longer make decisions for themselves due to a loss of mental capacity, by granting such powers to another person—an “attorney”. People can apply for, broadly, two main types: first, a health and welfare LPA, which can make decisions about a person’s medical care and treatment; and, secondly, a property and finance LPA, which can make decisions about a person’s money and property. Thus an LPA lets an individual choose the people they trust to be attorneys to support them and make decisions for them if they lose the mental capacity to make their own decisions in the future—for example, due to an illness like dementia, or through an accident.

LPAs are increasingly valuable and necessary as our population ages. No one likes to think about a loved one losing the ability to make their own decisions, but this is, sadly, a reality for so many people. Two nights ago, on Wednesday, I went to a meeting at the Royal Society about the impact of AI on medicine. The capacity to analyse images will mean that, before very long, it will be possible to give people 15 years’ advance notice that they are likely to get dementia or Alzheimer’s. This will have quite a significant impact on people’s lives and, probably, on the LPA process.

My colleague Stephen Metcalfe in the other place spoke about the importance of a quick and accessible process. This Bill will give people the assurance that their family can act in their best interests and make life as comfortable as possible in their later years. It is with great frustration that I say that this is not necessarily the reality that people face today.

One of the problems is the sheer volume of paperwork. Many people find the current process for making LPAs stressful and needlessly complicated. Registering an LPA takes time. The latest figures show on average that the Office of the Public Guardian receives 5,700 LPAs each day—all of them on paper. The number of applications will exceed 1 million for the first time this year.

Once the Office of the Public Guardian receives an LPA, it must conduct manual checks on each piece of paper to confirm that it has been filled in correctly. As one can imagine, this is an entirely time-consuming process and many users find it cumbersome, bureaucratic and complex. That is an understatement. Frankly, the Office of the Public Guardian is at risk of financial unsustainability because its costs are increasing. What is more, if the LPA has been filled out incorrectly, it must be returned and corrected. In some circumstances, a new LPA must be made, which increases the delay to registration.

The Bill offers some solutions and the detail is outlined in the schedule. The Bill makes changes to the Mental Capacity Act 2005 to make it safer, easier and more sustainable to make and register an LPA. I will take these points in turn. First, how does it make it safer? Reforming the way in which people make and register their LPA will allow the Public Guardian to strengthen protections against fraud, undue pressure and abuse. The most crucial new safeguard is to allow the Public Guardian to verify identity as part of the registration process, which will help to prevent LPAs that have not been legitimately made.

As well as identity checks, the objection process has been redesigned to ensure and enhance safeguards where there are concerns about how an LPA has been made. This is an important early protection against an LPA being misused after registration. While it cannot catch all potential abuse—in reality, the number of such cases is very small—it is important that anyone with grounds for objection can raise them before the LPA is registered so that these concerns can be properly considered. Individuals must therefore understand how to lodge an objection to the registration of an LPA and everyone with grounds to object must be able to do so. The Bill simplifies the objections process by having the Public Guardian receive all types of objections in the first instance and allows anyone to make an objection. The Bill also requires the Public Guardian to notify all relevant parties when a completed LPA is ready to start the registration process. This relieves the donor, as in the past, of a great deal of the burden of doing so. Other protections that were supported during debates in the other place included restricting who can apply to register the LPA only to the donor. These changes combined will help to remove loopholes in the system so that they cannot be exploited to the detriment of the donor. This is one of the reasons why I hope that this House will support the Bill.

I turn to the ways in which the Bill will make the process easier. The Bill makes provision to help the public by, for the first time, facilitating a digital channel and enhancing the paper route. This is an important point, which is worth emphasising. The Bill will open up a digital alternative and this will have many benefits in the future. I must stress that the paper-based route to getting an LPA will remain, but this multichannel system will allow parties to move between channels to create a single LPA. As the debates in the other place highlighted, this flexibility will ensure that a wider group of people can create LPAs more easily. It is envisaged that all LPAs will eventually be stored in digital form, but of course if people want a paper copy, they will be provided with one.

On sustainability, there is currently a huge burden on the Office of the Public Guardian due to the manual processing of paper. I feel sure that the House instinctively understands this. A digital LPA will help to reduce the amount of paper that the Office of the Public Guardian has to receive, process and store. Each day, the OPG has to process 80,000 sheets of paper. The annual number of documents with which it has to deal amounts to roughly 11 tonnes of paper. Hence, noble Lords can understand how a digital alternative would allow the Office of the Public Guardian to redirect resources and invest in wider service provision. Provision of both the digital and paper channels will also build resilience into this process and help to reduce the likelihood of future backlogs. This will create a more positive experience for everyone involved in making LPAs better value for the fee payers.

The benefits of modernising LPAs do not stop there. The Bill means that future LPAs will be evidenced electronically, increasing accessibility for attorneys and others, who will be able to access an LPA through their electronic devices and securely share it with third parties when managing their loved ones’ affairs. Furthermore, third parties can have more confidence in LPAs, because they can check the status of the document in real time. This will be outlined in more detail in the secondary legislation.

So far, I have spoken only about the changes outlined in the Bill as they will affect LPAs; however, the Bill also allows chartered legal executives to certify copies of LPAs. This provision addresses the anomaly where chartered legal executives are able to participate in the process of setting up an LPA but are unable to certify copies of the same document. The Chartered Institute of Legal Executives has long argued for the removal of that statutory barrier, which is why Section 3 of the Powers of Attorney Act 1971 is being amended. The institute estimates that it will enable over 3,000 more lawyers to certify copies of LPAs, which, in turn, will facilitate competition and enhance access to this service for many consumers, with the potential for a reduction in the cost of service provision.

Licensed conveyancers have been assisting organisations with evidence of powers of attorney in many instances for many years. I would be grateful if the Minister could expand on the fact that the Bill is not intended to interfere with that process.

Finally, I turn to the Bill’s territorial extent and commencement, as set out in Clause 3. The Bill’s main provisions relate to England and Wales only, but there is some consequential effect on Scotland and Northern Ireland. Unfortunately, as the House knows, there is no working Assembly in Northern Ireland, but, on whether or not a legislative consent Motion is needed in respect of Scotland, I am very glad to report that one has been granted. Two days ago, a point was raised with me by the Law Society of Scotland regarding the automatic operation of Scottish powers of attorney in England. I believe that this issue was covered in a letter that the Minister of Justice wrote to Mr Patrick Grady in another place, but perhaps the Minister could cover that from the Dispatch Box.

As for commencement, Clause 3 comes into force on the day that the Bill becomes law; Clause 2 comes into force two months from the day it becomes law; and Clause 1 and the Schedule will come into force in subsequent regulations by the Lord Chancellor.

Since LPAs were first introduced in 2007, people’s expectations have changed, as has technology. People now expect digital services with appropriate safeguards. We need an LPA system for the digital world; this Bill provides it. It is narrow in scope and seeks to bring about real improvements. It tries to strike the right balance between improving efficiency and accessibility, while strengthening safeguards against fraudulent or abusive use of the system to protect the most vulnerable people in society, and it comes at a very modest cost to the public purse. I believe it will be successful in achieving its objectives, and I hope all noble Lords will join me in giving their full support to this important Bill. I commend it to the House and beg to move.

13:33
Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
- Hansard - - - Excerpts

My Lords, it is a privilege to follow the noble Viscount, Lord Stansgate, who introduced the Second Reading of the Bill comprehensively, fairly and persuasively. As he said, the bipartisan nature of the Bill is both striking and very welcome. It was introduced by Stephen Metcalfe MP, of my party, in the other place, and is now being championed in your Lordships’ House by the noble Viscount, of a different political persuasion, and that is very welcome indeed.

The purpose of a lasting power of attorney is to provide support and protection to the donor in the event that they lose mental capacity and are no longer able to make their own decisions in the future. Like the noble Viscount, Lord Stansgate, I have some personal experience of this. My uncle Bernard, of blessed memory, who was childless, asked me to take on these responsibilities and appointed me with a power of attorney. Like the noble Viscount, I never had to use it in the end, but I remember him telling me that knowing it was there gave him comfort, because he knew that if decisions had to be taken, they would be taken by somebody who knew him and what he wanted. Therefore, the Bill’s modernising of the process and the system for effecting an LPA is very welcome.

LPAs were introduced, as the noble Viscount said, by the Mental Capacity Act 2005. In addition to supporting this Bill in an unqualified way, the other purpose of this very short speech is to say a couple of words about the Mental Capacity Act 2005, because it is now nearly 20 years old. In that time, our understanding of mental health and its many challenges have increased. Technology has also advanced in that time, and indeed one of the advantages of this Bill is to bring in a digital system, although, as we have heard, a paper-based system will be retained. I am delighted to see that a digital process is being introduced. This is but one example, I suggest, of how much of our civil justice system and processes—this is ultimately part of civil justice—can be brought online and digitalised. We need more examples of this going forward.

One of the remaining problems, as we have heard, is delays in the Court of Protection process. Let me be very clear: that is not the fault of the judges. The judges in that court—indeed, all our courts, but especially in this court—work extremely hard and deal with some of the most difficult cases our judges have to consider. They are literally dealing with matters of life and death on a daily basis. But the court does need more resources, and I know my noble and learned friend the Minister is aware of that.

I have one final point, which arises in relation to LPAs, as well as other matters arising under the Mental Capacity Act, such as child trust funds, about which your Lordships’ House has heard on a number of occasions. It is always very tempting to make things easy, or easier, for the person who needs the assistance, whether that is the terminally ill patient or the mentally incapacitated child. However, there is a balance to be struck. On the one hand, we want to provide assistance to the person in need, but on the other hand, we also need to ensure that there is sufficient protection for that person. This Bill strikes that balance extremely well, and I am very happy to support it.

13:38
Baroness Watkins of Tavistock Portrait Baroness Watkins of Tavistock (CB)
- Hansard - - - Excerpts

My Lords, it is a pleasure to follow the noble Viscount and the noble Lord. I rise briefly to voice my support for the Bill and its aims.

Lasting powers of attorney are invaluable tools for people who are likely to lose capacity and the ability to convey their wishes, allowing them to have control over their future lives. We talk about keeping our affairs in order most frequently through the lens of our finances and property; there is much to be done in terms of safeguarding against fraud and financial abuse, and the Bill will do much to address those concerns. However, we do not talk often enough about the equally important—but, I expect, somewhat less well known—option of a lasting power of attorney for health and welfare. Just as you can nominate someone to make decisions about your finance and property if you lose capacity, you can nominate someone to make those same decisions in health and care settings. My sister and I had to do that for our mother, and it was very successful, because she had thought long-term in advance.

The provisions in the Bill that allow for LPAs to be completely digital are important, as they will remove barriers to completing them by streamlining the process. It will reduce the time it takes to complete the process and for the Office of the Public Guardian to complete its necessary checks, which will also give people greater confidence in the process.

While the Bill is necessarily focused on the reform of powers of attorney, I want to highlight a related issue that is also in need of a modest but important digital reform. Living wills, known officially as advance decisions to refuse treatment, allow a person to say now if there are treatments that they do not wish to be given in the future, should they lose the capacity to communicate. Like LPAs, they were formalised by the Mental Capacity Act 2005 and, under the law at present, must be signed using a so-called wet signature. This prevents them being fully digital, which in turn makes these important documents very difficult to share across care settings and to be visible when it matters most.

The impact of this is clear. Many people are going to great lengths to consider and record their end-of-life wishes but, very sadly, often they are not known about due to the paper forms being lost or not properly uploaded to a medical record, or due to their local area’s digital record systems not allowing them to be shared. This can be of particular concern when a person’s records might be shared between GPs, hospitals, community care, ambulance services or care homes, for example. In real and simple terms, it means that sometimes people are given treatments that they would not want, all because the system by which records are shared has let them down.

The impact for the individual can be catastrophic and result in a much more complicated bereavement for loved ones. Compassion in Dying, a charity that supports people at the end of life to record, discuss and communicate their wishes, has asked me to raise this point at Second Reading. It too is fully supportive of the moves to reform powers of attorney, but urges us as legislators to consider making similar moves in the near future to ensure that living wills can benefit from the same reforms and so make it easier for our wishes to be respected if we ever lose the ability to make or communicate those wishes for ourselves.

According to the people supported by Compassion in Dying, the very fact that living wills are difficult to share, and the concern that they might not be available to healthcare professionals when they are needed most, is a barrier to even starting the process. Compassion in Dying says:

“We are convinced that enabling digital signatures on Living Wills in a safeguarded way would transform the experiences of thousands of dying people in the UK. Being able to know what matters to each person is a central part of high-quality care: allowing for fully-digital Living Wills would make this so much easier for so many”.


I welcome this Bill and its noble effects, and hope that the separate but equally important issue of living wills can be addressed in the very near future.

13:43
Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
- Hansard - - - Excerpts

My Lords, I congratulate my noble friend on introducing the Bill so comprehensively and fairly, as the noble Lord, Lord Wolfson, said. I also congratulate Mr Metcalfe on steering it through the other place.

The provisions in the Bill are much needed, and the Labour Party is pleased to support them. A lasting power of attorney ensures that an individual’s personal wishes and preferences can be considered when capacity is lost, which can massively reduce the stress and anxiety for their family through an extraordinarily difficult time. However, the process for making and registering a lasting power of attorney has long been due an update. The current paper-based process can be confusing and bureaucratic. We wholeheartedly welcome the modernising measures in the Bill. We need to plan now for the challenges that will face our legal system in the coming decades.

I hope that these changes will help to future-proof our system and ensure that the case load of the Office of the Public Guardian, which is already beset by delays and backlogs, as we have heard in this short debate, does not become completely unmanageable as our population continues to age and the number of people living with illnesses that can affect their capacity increases.

The need and demand for lasting power of attorney will increase significantly in the coming years, so the creation of a digital process to streamline much of the work is a necessity. Currently about 900,000 people in the UK have a diagnosis of dementia. According to Dementia UK, that number will rise to more than 1 million by 2025 and is projected to rise further, to 1.5 million, by 2040. We are pleased that the paper application route will remain in place for all those who need it. Current figures suggest that about a quarter of those over 65 do not have easy access to the internet. Applying for an LPA can be a difficult process at the best of times, so it is right that the paper route is kept open so that applicants can apply by whichever means most suits them.

It is very welcome that the Bill will amend Section 3 of the Powers of Attorney Act 1971 to enable chartered legal executives to certify copies of powers of attorney. They are legal professionals who can carry out many of the same services as a solicitor, so it is good to see that inconsistency addressed. The Bill builds on several welcome safeguards, including the introduction of identity verification, restricting who can apply to register the LPA and changes to the objections process. The Law Society has raised some additional safeguarding concerns that I want to bring to the attention of the Minister. First, has he considered amending the Mental Capacity Act 2005 to make it clear that the certificate provider has a responsibility to confirm that the donor has the mental capacity to make an LPA?

Secondly, can the Minister confirm whether future guidance on the role of the certificate provider will include questions for them to ask the donor that will test whether they can rely on the presumption of capacity? Thirdly, what steps is he taking to ensure that a certificate completed by a certificate provider for an LPA application shows that the certificate provider has been satisfied that the donor understands the information relevant to the decision to execute the LPA, and that the provider can retain the information that was used to weigh up the decision to put the LPA in place?

The noble Lord, Lord Wolfson, spoke about his family experience, and I suspect that many people, including me, have experience of legal powers of attorney. I currently hold one for my mother, who I will see later today, but I obviously hope that I will not have to invoke its powers. I understood the point that the noble Baroness, Lady Watkins, made about living wills. We are very sympathetic to the points she made, but she also accepted that this is an issue for an amendment to a different Bill, or for another Bill standing in its own right. Nevertheless, we are very sympathetic to her point. We welcome this Bill.

13:48
Lord Bellamy Portrait The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
- Hansard - - - Excerpts

My Lords, the Government wholeheartedly support the Bill, and I thank the noble Viscount, Lord Stansgate, for setting out so eloquently and clearly its content and purpose. So clearly has he set out the Bill that I do not think I need repeat what it says, save to say that there are essentially four main aspects in relation to LPAs. It simplifies and digitises the process; it requires identity checks on the donor; it has a better procedure for objection involving, for example, local authorities, the police and other interested parties; and it provides that only the donor can register. I think those are the main points but, thanks to that very clear explanation, your Lordships are already fully seized of the content of the Bill and I will say no more about it.

I add the Government’s thanks to Mr Stephen Metcalfe for his great and persistent work in another place to bring this most important Bill to its present fruition. I hope he will accept our thanks and compliments for that very important work.

It is sometimes forgotten by the general public, I think, that both Houses of Parliament do important, detailed work on very detailed points. It is not a great political circus; we are working hard on matters of detail that affect people’s lives. As has been said, with over 6 million LPAs, increasing at the rate of a million a year, this really does affect people’s lives. For that reason, we are particularly grateful to the noble Viscount, Lord Stansgate, and others who have spoken in favour of this Bill.

I will deal with a number of the points raised in this debate. First, I stress that, although the process will be primarily electronic and will facilitate access to powers of attorney by other parties when the need arises—for example, a bank—if an attorney needs to activate the LPA, there will also be a paper channel so that those who do not have the internet or are not equipped to operate it can do so. It will be a fully flexible system so that donors, attorneys and others involved will be able to use whichever channel best suits their needs, be that digital or paper.

Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
- Hansard - - - Excerpts

If there is a discrepancy between a paper copy and a digital copy, am I right in thinking that it will be up to the court to decide which of the two versions is correct?

Lord Bellamy Portrait Lord Bellamy (Con)
- Hansard - - - Excerpts

My Lords, as far as I know, the noble Lord is entirely correct in his assumption. If I am, or he is, wrong, I will write accordingly to clarify that point. It will ultimately be for a judicial process—possibly for the Office of the Public Guardian, initially, and then for a judicial process—to determine which of the two conflicting versions is the “authentic” version.

This change, by reducing the laborious and very time-consuming verification of paper documents, will, or should, over time release resources for the Office of the Public Guardian to investigate and pursue cases that look dubious or are attempted frauds, or which raise other difficulties. So we see this as not only benefiting the donors and attorneys but removing burdens on the Office of the Public Guardian and allowing that very responsible organisation to reinvest its resources in enforcement or investigation, or in improving safeguards as necessary. So, for the reasons that have been given, the Government welcome this Bill very sincerely.

I will briefly address the points raised by other noble Lords. As my noble friend Lord Wolfson said, the Government fully support the work of the Court of Protection, and the judges of that court do magnificent work under very difficult circumstances. Of course, this is part of the wider digitalisation of the civil justice system, which the Government are also supporting and, if I may say so, making quite good progress on under the remarkable leadership of Sir Geoffrey Vos, the Master of the Rolls, who is very focused on digitalisation and the future of the justice system in that respect. As my noble friend Lord Wolfson said, we always have to find a balance in these systems between protection of the vulnerable and facilitating the processes. That, I hope, is the balance that has been struck under this Bill.

On the points rightly raised by the noble Baroness, Lady Watkins, the Government welcome the mention of health and welfare LPA. That is sometimes forgotten as a part of the machinery, but it is important; one never quite knows when one is going to lose one’s health and welfare, or to need an attorney to look after one from that point of view.

Living wills, as the noble Lord, Lord Ponsonby, said, is under separate legislation and is a separate issue. The point about the wet signature holding everything up and leading to people not knowing quite what the patient’s wishes are is an important one. The Government will certainly note the points that have been made today and continue to reflect on them.

On the points raised by the Law Society about the certificate provider and whether we have sufficient checks in that respect, the department is considering those and in due course will make proposals about the best way of achieving that. There could well be changes to the certificate itself, the forms used and the supporting guidance. I am not sure that legislation will be necessary, but we could tighten up the existing procedures, or at least review carefully whether they are sufficient, and test any potential changes with stakeholders and users to ensure that they achieve the core aims we need to achieve.

Scotland has been mentioned. The Scottish Government have given a legislative consent Motion. The UK Government felt that one was not needed, but at least there is one so that point does not arise.

Concern has been expressed by the Law Society of Scotland that powers of attorney granted in Scotland are not always readily recognised in England and Wales. The Government’s view is that that is primarily a question of raising awareness. There is no legal reason why a Scottish power of attorney cannot be recognised in England and Wales, as far as I am aware, so it is primarily a question of raising awareness and making sure that the relevant professionals are more familiar with the status of Scottish powers of attorney than may apparently be the case.

The noble Viscount, Lord Stansgate, noted the interest of licensed conveyancers in relation to Clause 2. I can confirm on behalf of the Government that the Bill is not intended to interfere with the previous or indeed ongoing practice of organisations such as the Land Registry accepting copies of powers of attorney from licensed conveyancers. So the licensed conveyancer will send in the documents that are necessary, which may well include a copy of the power of attorney. That is a long-standing practice that has given rise to no difficulty, and nothing in the Bill is intended to change that practice.

There is a second important aspect to the Bill, which is to enable chartered legal executives to certify copies of a power of attorney. That is not only correct in itself but is part of the Government’s general policy of facilitating CILEX members to carry out tasks and functions that other legal professionals, solicitors and barristers can carry out. Only yesterday, as the noble Lord, Lord Ponsonby, will remember, the Grand Committee passed statutory instruments enhancing the number of judicial appointments that CILEX members can aspire to. Together with this provision, that is also part of the Government’s overall policy of widening the pool of qualified lawyers so there is absolute availability of qualified lawyers.

I think I have covered the points that were raised. It only remains for me to reiterate the Government’s support for the Bill and to thank the noble Viscount, Lord Stansgate, in particular and other noble Lords who have spoken today.

13:59
Viscount Stansgate Portrait Viscount Stansgate (Lab)
- Hansard - - - Excerpts

My Lords, I will not detain the House, but I would like to say a couple of things. It gives me great pleasure to see my friend and colleague present to listen to the compliments paid to him today for having steered the Bill through the other place. It strikes me that so many contributors today have personal experience of the subject; it shows that, as I said, millions of people and their families up and down the country will find that this Bill affects them, I hope for the better.

It would be remiss of me not to thank noble Lords for some of the compliments I have been paid. I take it as a great compliment to hear from some of the legal experts in front of me that I have introduced a Bill—incidentally, the first time I have ever done so—in a “comprehensive way”, unless of course that is a hidden way of saying that I took too long to do so.

The points made by the noble Lord, Lord Wolfson, are very important. It is a great comfort to a donor to know that they have arrangements in place and I think the new procedures will assist. The noble Baroness, Lady Watkins, mentioned the issues raised by Compassion in Dying—as we know, they apply not so much to this Bill, which falls in a different area—which has been in touch with me. In fact, I spoke to Compassion in Dying this morning before this debate. I fully understand the way in which she raised these issues and know very well the reasons why they matter to people. I hope that one of the effects of this Bill reaching the statute book, which I hope it does, will be to further advance the causes she raised. I also thank my noble friend on the Front Bench for the support that he has given the Bill on behalf of the Official Opposition and the Minister for covering some of the points raised to the satisfaction, I think, of all concerned.

The last thing I will say is that this has been a fairly short but consensual debate. It has seen Parliament as it is supposed to be: a working environment, or a workshop, designed to try to bring about changes in people’s lives for the better. When you consider some of the attacks made on Parliament and the parliamentary process, you could do worse than look at a short debate such as this and see that it is possible to make real change in a consensual way—and I will leave it there.

Bill read a second time and committed to a Committee of the Whole House.

Powers of Attorney Bill

Order of Commitment discharged
Tuesday 4th July 2023

(8 months ago)

Lords Chamber
Read Full debate Powers of Attorney Act 2023 Read Hansard Text
Order of Commitment
Scottish legislative consent granted.
15:19
Moved by
Viscount Stansgate Portrait Viscount Stansgate
- Hansard - - - Excerpts

That the order of commitment be discharged.

Viscount Stansgate Portrait Viscount Stansgate (Lab)
- Hansard - - - Excerpts

My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I hope that the House will discharge the Committee, and I beg to move to that effect.

Motion agreed.

Powers of Attorney Bill

3rd reading
Thursday 14th September 2023

(5 months, 2 weeks ago)

Lords Chamber
Read Full debate Powers of Attorney Act 2023 Read Hansard Text
Third Reading
12:05
Motion
Moved by
Viscount Stansgate Portrait Viscount Stansgate
- Hansard - - - Excerpts

That the Bill do now pass.

Bill passed.
Viscount Stansgate Portrait Viscount Stansgate (Lab)
- Hansard - - - Excerpts

My Lords, I believe the House allows a Member proposing a Bill to say a few words of thanks.

Baroness Pitkeathley Portrait The Deputy Speaker (Baroness Pitkeathley) (Lab)
- Hansard - - - Excerpts

I am sorry, I have already called the voices, so I think we must move on.

Royal Assent

Royal Assent
Monday 18th September 2023

(5 months, 2 weeks ago)

Lords Chamber
Read Full debate Read Hansard Text Amendment Paper: HL Bill 136-R-I Marshalled list for Report - (1 Sep 2023)
21:30
The following Acts were given Royal Assent:
Lifelong Learning (Higher Education Fee Limits) Act,
Northern Ireland Troubles (Legacy and Reconciliation) Act,
Powers of Attorney Act,
Northern Ireland Budget (No. 2) Act,
Pensions (Extension of Automatic Enrolment) Act,
Animals (Low-Welfare Activities Abroad) Act,
Workers (Predictable Terms and Conditions) Act,
Protection from Sex-based Harassment in Public Act,
Veterans Advisory and Pensions Committees Act,
Firearms Act.
House adjourned at 9.31 pm.