Powers of Attorney Bill

Nickie Aiken Excerpts

3rd reading
Friday 17th March 2023 Commons Chamber

[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.

[Mr Mohindra]

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]

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 (Heywood and Middleton) (Con)]

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]

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.

[Mr Mohindra]

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]

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 (Clwyd South) (Con)]

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]

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.

[Chris Clarkson]

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?

--- Later in debate ---

[Nickie Aiken]

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]

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]

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.

[Simon Baynes (Clwyd South) (Con)]

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]

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]

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.