Powers of Attorney Bill

Lord Ponsonby of Shulbrede Excerpts

2nd reading
Friday 16th June 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

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.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

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 (Lab)]

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 (Con)]

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.