Powers of Attorney Bill

James Wild Excerpts

3rd reading
Friday 17th March 2023 Commons Chamber

[James Wild (North West Norfolk) (Con)]

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.

--- Later in debate ---

[Nickie Aiken (Cities of London and Westminster) (Con)]

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]

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]

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.

--- Later in debate ---

[Nickie Aiken]

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]

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]

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.

--- Later in debate ---

[Simon Baynes]

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]

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]

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.

--- Later in debate ---

[Chris Clarkson (Heywood and Middleton) (Con)]

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]

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

[Chris Clarkson]

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.