Powers of Attorney Bill

Mike Freer Excerpts

3rd reading
Friday 17th March 2023 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

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 These problems can be summarised in three points: outdated safeguards; confusing paper forms; and an unsustainable volume of forms for the Office of the Public Guardian to deal with.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.