Power of Attorney

Lord Stewart of Dirleton Excerpts

Wednesday 2nd February 2022 Lords Chamber

[Baroness Greengross]

To ask Her Majesty’s Government what steps they are taking to tackle power of attorney being used as a form of economic abuse that disproportionately affects older people.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, lasting powers of attorney—LPAs—offer vital protections where someone lacks the mental capacity to make their own decisions. While abuse is concerning, thankfully it is rare. Some 5 million LPAs are registered with the Office of the Public Guardian and in the year 2020-21, that office investigated 1,971, taking action in 675 cases. We cannot be complacent with older people at increased risk of abuse and we recently consulted on modernising LPAs to improve safeguards. The response to that consultation is due in the spring.

[Baroness Greengross (CB)]

My Lords, unless stated, there is no obligation to tell family members that a power of attorney has been created and there are no publicly searchable online databases of registered powers of attorney. It can be hard to gain the information from the Office of the Public Guardian concerning powers of attorney in a timely fashion. This facilitates, perhaps, harm and abuse. The charity Hourglass, of which I am patron, supports victims of abuse and last year 144 of its cases reported having a power of attorney in place. What assessments have been made of proposals to introduce a national register of powers of attorney?

[Lord Stewart of Dirleton (Con)]

My Lords, I begin by acknowledging, on behalf of the House, the great work that the noble Baroness has carried out in this very important field, not only as patron but as founder of the charity to which she made reference. The OPG is responsible for maintaining the register of LPAs in England and Wales; that is one of its statutory functions. That register can be searched by any member of the public or third party, using a service called OPG100. Additionally, donors and attorneys can provide third parties with access to OPG’s “Use a lasting power of attorney” service, which allows third parties to check instantly the latest information and status of an eligible LPA. Modernising that process presents us with great opportunities, but we must also bear in mind obligations of confidentiality.

[Lord Mackenzie of Framwellgate (Non-Afl)]

My Lords, I have come across several cases recently where elderly people have been taken advantage of, often by their own relatives, being relieved of thousands of pounds of hard-earned savings as a result of granting power of attorney. As solicitors are involved in this process, is the Minister satisfied that they are sufficiently aware of their duty of care to vulnerable clients during the discussion periods prior to such powers being granted?

[Lord Stewart of Dirleton (Con)]

My Lords, the OPG is working with solicitors, other professional bodies and other bodies within the community to make sure that persons considering becoming donors and taking out powers of attorney are aware of these protections.

[Baroness Kramer (LD)]

My Lords, as an MP I had the case of an elderly and very wealthy lady afflicted with dementia who was removed from the luxury home that she had chosen and could afford by her attorneys, who were also her heirs. She was put in a much cheaper home in order to protect their inheritance. The lady was so traumatised that she died within weeks. The Office of the Public Guardian could do nothing, because the new home met CQC standards. Is there a way to give it powers and to look at the misuse of the power, rather than just acting in cases of clear illegality?

[Lord Stewart of Dirleton (Con)]

The OPG currently has powers to make reference to the police, in terms of fraud, to instigate investigations, including using other bodies such as local authorities or the National Health Service. Again, on the reference to the consultation that is to report in the spring, we look to strengthen the ability of the OPG to intervene in such cases.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, could the Minister outline what further measures are contemplated to monitor the misuse of the power of attorney, sometimes by relatives of the person involved?

[Lord Stewart of Dirleton (Con)]

The noble Baroness poses the question of monitoring the situation. Again, the consultation procedure has been invited to take views as to the use of identification procedures in relation to people becoming attorneys, and there is a range of measures in contemplation to assist banks and other institutions to properly investigate persons taking out such schemes.

--- Later in debate ---

[Baroness Finlay of Llandaff (CB)]

My Lords, the Office of the Public Guardian has changed its processes so that it writes to donors at their home address to inform them that an LPA is being applied for, but in the consultation on modernising the LPA do the Government anticipate that they will need to bring forward new legislation to strengthen the powers of the Office of the Public Guardian to strike out people who hold an LPA who abuse those powers, as outlined in the question from the noble Baroness, Lady Kramer?

[Lord Stewart of Dirleton (Con)]

My Lords, new legislation will be required. To put matters into perspective, in 2021 there were more than 5 million LPAs on the OPG register, and only nine have been removed from the register because of concerns about fraud by false representation during their creation.

[Lord Morrow (DUP)]

My Lords—

[Lord Morrow (DUP)]

In Northern Ireland, the Commissioner for Older People can speak on behalf of older victims of economic abuse. The same role exists in Wales, and the Scottish Government have in place a Minister for Equalities and Older People. Can the Minister identify an equivalent here in England, so we can bring these parties all together?

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for his question, and I can answer it by saying that in England it is a function of local government to carry out those tasks.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too would like to acknowledge the lifetime’s work done by the noble Baroness, Lady Greengross. There are things we take for granted until we no longer have them: our ability to choose; our ability to make decisions; and our ability to express ourselves. When these abilities fade, we need to have confidence that legal processes will protect our interests. We are all bombarded by attempts at fraud, almost on a daily basis, and more vulnerable people are more vulnerable to those attempts. The Government’s stated aim is to create a lasting power of attorney service for the digital world. My stepfather is 97. He does not live in the digital world. How will his interests be protected?

[Lord Stewart of Dirleton (Con)]

My Lords, I agree with everything the noble Lord outlined, and I can assure the House that a paper means of setting up these mechanisms will continue, even after digitisation.

[Baroness McIntosh of Hudnall (Lab)]

My Lords—I am looking around carefully to make sure it really is my turn—I wonder if the Minister would agree with me that, while we have to be very concerned about the incidents of fraud and the misuse that has just been revealed in the questions he has been asked so far, there is none the less great virtue in lasting powers of attorney. They are very important ways in which all of us can protect ourselves against the things that may happen to us in the future. People should be encouraged to make lasting power of attorney arrangements early enough, while they still have capacity to understand fully what they are committing to, and to inform the people who will be their attorneys how they wish their wishes to be carried out. Would he agree they are not yet encouraged enough?

[Lord Stewart of Dirleton (Con)]

I do agree with the noble Baroness, and I can advise her that even very recently OPG carried out engagement with specific groups in society identified as being less likely to avail themselves of the protections offered by LPAs—specifically, people from socioeconomic groups and within ethnic minorities who have been identified as less likely to take up these protections, which, I agree with the noble Baroness, are of enormous importance for the whole of society.

[Baroness Hussein-Ece (LD)]

My Lords, could I ask the Minister about the increase in predatory marriages, whereby fraudsters target elderly people, usually with dementia, in order to swindle them out of their inheritance, usually by getting into marriage when they do not have the capacity, normally, to make such decisions. Could he say what the Ministry of Justice and his department are doing to put registrars on a statutory training course to ensure that, when they are approached by people who want to get married, they have the capacity to do so according to their own free will?

[Lord Stewart of Dirleton (Con)]

I can say, under reference to the Question from the noble Baroness, Lady Greengross, which concerned lasting powers of attorney, that the OPC has, after certain recent cases, instituted increased training schemes within its number and introduced a buddying scheme so junior members of staff can learn from senior members of staff. As to the specific question the noble Baroness poses on predatory marriages, I regret to say it is not within my department, but I will speak to the Minister in charge, and it may well be, if the noble Baroness is willing to wait, that we will express ourselves in writing.