Powers of Attorney Bill

Patrick Grady Excerpts

Committee stage
Wednesday 1st March 2023 Public Bill Committees

[Patrick Grady (Glasgow North) (SNP)]

I congratulate the hon. Member for South Basildon and East Thurrock on bringing forward the Bill and securing Government support. I have a few brief comments to make. Power of attorney provisions are increasingly valuable and necessary as the population ages and our interactions with different authorities and agencies become more complicated. The Bill’s simplification of the application process and introduction of further safeguards for applicants and donors are very welcome.

As the hon. Member recognised, the legal system in Scotland is devolved; in fact, it has had its own legal system since the Acts of Union. The aspects of the Bill that apply north of the border are largely technical and consequential in nature—for example, relating to the recognition of chartered legal executives. There are certain differences in how power of attorney arrangements work north and south of the border—for example, in how the application is witnessed and certified—and Scotland has its own Office of the Public Guardian. It is important that both systems are robust and that everybody—donors, or granters as they are known in Scotland, attorneys and the institutions they interact with—has full confidence in the integrity of the system.

I understand that there are some issues with mutual recognition north and south of the border. I am not sure whether the Bill is the correct vehicle to tackle them, but I wonder whether there is an opportunity to explore that before Report. If there is an opportunity to simplify and clarify the law in this area and ensure that there is mutual recognition north and south of the border, it is important that we take it. There are often cross-border issues for families and individuals and their attorneys. Many of us, myself included, have had constituency casework related to the complications that can arise when a family is in one part of the United Kingdom but care is being received or properties have to be managed in another part of the United Kingdom. Perhaps that could be considered before Report.

I am extremely glad that there is consensus on the Bill, and I am glad to be able to take part in the Committee and help it to progress. It cannot cover everything, and there are some wider issues that could be considered in the longer term—not least the variation in the charges that solicitors often apply when providing advice in this area. Ensuring that more people can safely and with confidence provide for a power of attorney in the long run will hopefully help people to save money and, more importantly, save some of the stress and confusion that can arise when a relative is incapacitated. We should all be working to raise awareness of the value that having the power of attorney in place can bring. I congratulate the hon. Member for South Basildon and East Thurrock again, and I look forward to the progress of the Bill.

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

It is a great pleasure to serve under your chairmanship, Mrs Murray. I will try not to detain the Committee for long. I want to express my wholehearted support for the Bill of my hon. Friend the Member for South Basildon and East Thurrock, and I thank him for introducing it.

It is my privilege to be the Minister responsible for mental capacity, and I am particularly aware of how necessary these provisions are. A lasting power of attorney, or LPA, ensures that a person’s wishes and preferences can be considered and reduces the stress and burden on families when capacity is lost unexpectedly. However, despite the intention, the reality is that a lot of people find the current paper process for making LPAs stressful, confusing and bureaucratic. Having had experience of trying to put an LPA in place for both my mother and my mother-in-law, I can testify to how confusing, bureaucratic and difficult the process can be.

It is ever clearer that modernisation is no longer just an option, but an absolute necessity. It will help the Public Guardian to respond to changing societal needs and ultimately make the process for making and registering LPAs safer, simpler and more accessible. No doubt the introduction of a digital channel and an improved paper route will help to make an LPA more accessible for more people. The hybrid approach will provide flexibility between digital and paper channels to create a single LPA. However, it is the changes to the application process that my hon. Friend explained, such as removing the ability for anyone other than the donor to apply to register an LPA and allowing the Public Guardian to co-ordinate the completion of the document, which allow for that flexibility.

My hon. Friend outlined that in the new system, the LPA will be registered as an electronic document and accessed digitally; therefore, proof of an LPA can be provided and accessed instantly. Of course, as my hon. Friend also mentioned, physical proof of an LPA can still be requested for those unable to access a digital service. More generally, chartered legal executives will also be able to certify copies of any power of attorney, including LPAs, which they are unable to do under the current legislation. That will remedy an anomaly in the process that allows Chartered Institute of Legal Executives lawyers to participate in the creation of a power of attorney, but then renders them unable to certify as genuine a copy of the same document. Along with modernising the LPA, that will help to make sharing and using all LPAs, whether old or modernised, easier in the future.

As my hon. Friend covered, those measures relating to evidence of the LPA or power of attorney are the only sections of the Bill that extend to Scotland and Northern Ireland. I therefore want to take the time to affirm that it is the Government’s position that no legislative consent motion is needed, as changes are consequential to the legislation in England and Wales. I take the point the hon. Member for Glasgow North made, and if he wishes to contact my hon. Friend the Member for South Basildon and East Thurrock or myself afterwards, we will see if we can address any specific concerns he may have about the application in Scotland.

So far, I have spoken about the benefits of the Bill for the access and use of LPAs and powers of attorney generally, but digitisation will also help the Public Guardian to become more sustainable. Digitisation reduces the Public Guardian’s burden to scan, process and store enormous volumes of paper—11 tonnes at any one time. Manual checks can be automated and happen earlier; I am confident that that will create a speedier process, help to reduce errors in the LPA that prevent registration and ensure the Public Guardian is fit for the modern world.

As my hon. Friend has so eloquently explained, the Bill will guarantee access to a system that is simple to navigate and easier to complete. However, that must be balanced against the need for suitable safeguards. That is partly achieved through changes made by the Bill to notification and objection. Currently, the Public Guardian trusts that the applicant has notified people of their ability to object. Having the Public Guardian inform parties means it can be certain that notifications have been sent, increasing the protection provided.

What is more, the Bill simplifies the objection process by providing a single route for all objections, starting with the Public Guardian and ending at the Court of Protection. If required, the Court of Protection can step in. I share my hon. Friend’s view that formalising the existing process will increase protections for donors, due to clarity about where and how to express concerns about the registration of an LPA.

I am also delighted to see the introduction of identity verification for certain parties. That will help to protect donors and wider society from unauthorised access to people’s assets by reducing the risk of fraud. It is a significant increase in safeguards. The introduction of identity verification, alongside the changes to notification and objections, is a driving factor in why the Government support the Bill. It will embed robust safeguards throughout the process for making an LPA.

In closing, I reiterate my thanks to my hon. Friend the Member for South Basildon and East Thurrock for sponsoring this important Bill and confirm the Government’s continuing support for it. This may not be a long Bill, but its impact is far-reaching. It is therefore vital that we support the measures, and I am grateful to the Committee members who have spoken so helpfully. I look forward to engaging more as the Bill progresses through Parliament.

Powers of Attorney Bill

Patrick Grady Excerpts

3rd reading
Friday 17th March 2023 Commons Chamber

[Patrick Grady (Glasgow North) (SNP)]

A very happy St Patrick’s Day to you, Madam Deputy Speaker. I congratulate the hon. Member for South Basildon and East Thurrock (Stephen Metcalfe) on the progress his Bill has made. I think all of us are quite relieved that we have made it to Third Reading at a respectable pace, after the House unanimously agreed on earlier Bills, particularly the Hunting Trophies (Import Prohibition) Bill, which was of great concern to many of my constituents and people across the country.

It has been a slightly unexpected pleasure to serve on the Public Bill Committee and then to follow the progress of the Bill. We do these things as favours to each other sometimes and then find that a Bill piques our interest and there is even more we can take forward. As the hon. Member for South Basildon and East Thurrock and others have recognised, powers of attorney provisions are increasingly valuable in the modern world, especially as the population ages and we interact in different ways with authorities and institutions. The Bill will make that process easier, especially for people in England. It will also introduce important new safeguards.

Most of the legislation in this area is devolved, and there are a number of differences between power of attorney provisions north and south of the border, but the Bill makes a number of changes in devolved areas. Despite the Government’s assessment in the explanatory notes, the Scottish Government have chosen to bring forward a legislative consent motion and a legislative consent memorandum. Private Members’ Bills are done slightly differently, but where the Government are keen to facilitate the passage of a Bill, they should perhaps make sure that officials north of the border are fully apprised of that, so that things can move as quickly as possible.

The Scottish Government intend to use that memorandum and motion to consent to the Bill, because they recognise the importance of the smooth operation of powers of attorney north and south of the border. The legislative consent memorandum says in paragraph 12:

“Consent is recommended, because the Bill is aligned with the Scottish Government’s emphasis on increasing accessibility to obtaining a power of attorney. As noted above, the changes that apply to Scotland will allow the record in the register of LPAs maintained by the Public Guardian in England and Wales to be used as sufficient proof of the contents of an instrument in any part of the United Kingdom including Scotland.”

That is an important provision in terms of the recognition of powers of attorney north and south of the border, and the Minister and I have had useful exchanges in Committee and since then about how Scottish powers of attorney are recognised in England.

The website of the Office of the Public Guardian in Scotland notes that a Scottish power of attorney

“can be used in England or Wales if an Organisation (e.g. a bank) accepts its authority, but if they do not things are more problematic. The Organisation may require an endorsement of the Scottish PoA from the English authorities”.

As I say, the Minister and I have had exchanges on this, and he has recognised in a letter to me that there is a need to ensure that institutions and organisations are aware of the legal status of Scottish powers of attorney in England and Wales. I hope he might be willing to put a copy of that letter in the Library of the House, so that other Members can see the detail. I accept that this Bill in particular is not the vehicle, and he argues that legislative change generally is probably not needed; it is more about raising awareness and understanding.

That is particularly important, not least because all of us will encounter the use of powers of attorney in the years to come. For many of us, that will be in our roles; the issue of cross-border recognition has cropped up in my casework from time to time. Increasingly, we will all find interactions with powers of attorney in our personal lives as well.

The Bill strengthens and simplifies the system for obtaining and using a power of attorney, especially in England. I congratulate the hon. Gentleman, and the Minister and his team, on their success in securing its passage.

--- Later in debate ---

[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.

[Patrick Grady]

I am happy to pick this up with the hon. Gentleman. We recognise that the Bill is not quite the vehicle to deal with this issue in legislative terms, but it has shone a light on the importance of mutual recognition south of the border and of people having powers of attorney in the first place. I assure him that we are all working together on this, and there is consensus.

[Chris Clarkson]

I thank the hon. Gentleman for his intervention and completely agree; there is an outbreak of consensus across the House. These are such important and necessary changes.

I am pleased that my hon. Friend the Member for South Basildon and East Thurrock has made provision for maintaining the paper route, with a fluid system in which it is possible to use both paper and digital. It is not just older people who sometimes struggle with accessing or using technology, although I have been approached repeatedly by constituents who are upset or concerned that they are not able to access the full range of services from various providers for that reason. There is also a digital divide. I represent a constituency that is not particularly affluent. There are people who simply do not have access to the technology or might not have had sufficient training in using it to feel confident going through this process, whereas if somebody can sit down with them and go through a form, they have the certainty that it is being dealt with properly, so I am pleased that my hon. Friend has maintained that route.

The Bill strikes the balance between improving the efficiency and processing times of applications and minimising the dangers of fraud. These circumstances are never easy—they are often some of the most heartbreaking and challenging situations, where loved ones are simply losing capacity and people have to make difficult decisions about what happens to them next. The Bill is a step in the right direction. It eases the burdens on individuals and takes away some of that difficulty and stress. It removes some of the expense, which blocks some people from accessing this, and gives people flexibility and choice. I strongly commend the Bill to the House and thank my hon. Friend the Member for South Basildon and East Thurrock for his diligent work on it.