Powers of Attorney Bill

Peter Gibson Excerpts

Committee stage
Wednesday 1st March 2023 Public Bill Committees

[Stephen Metcalfe (South Basildon and East Thurrock) (Con)]

It is a pleasure to serve under your chairmanship, Mrs Murray, I think for the first time. I also give my huge thanks to all the Members who have turned out to help with this short but important Bill.

Clause 1 will facilitate three things: first, improvements to safeguards in creating a lasting power of attorney; secondly, a simpler process for making and registering an LPA, increasing access for all involved; and, thirdly, making the Office of the Public Guardian more sustainable.

My Bill will increase access by allowing LPAs to be made and registered electronically, while—I emphasise this—also facilitating a new paper process. It is important not to overcomplicate the service, to ensure that everyone who wants an LPA has access to make one. In the new system, donors, attorneys and others involved will be able to use the channel—digital or paper—that best suits their needs. It will be a fluid system.

The new system must be balanced against the need for suitable safeguards, which my Bill also provides for through the introduction of identity verification; changes to the objection process, to ensure a more straightforward process aligned with the system that the Public Guardian operates now; and restricting who can apply to register the LPA to just the donor.

Finally, to ensure the sustainability of the Office of the Public Guardian, it is vital to reduce its reliance on paper. My Bill allows for a future system in which the LPA will be registered as an electronic document, and that electronic document will be used as evidence of registration, while still allowing physical proof for those who need it. The combination of changes realised by the schedule will enable the development of an easier but more secure process for people wishing to make and register a lasting power of attorney.

Clause 2 amends section 3 of the Powers of Attorney Act 1971 to enable chartered legal executives to certify a copy of a power of attorney. The process to certify a copy of a power of attorney does not require specialist legal skills, yet, under the existing legislation, chartered legal executives—lawyers who provide mainstream legal services—are not included among those who are able to do that. That does not make any sense and is not in line with the evolution in the legal services sector that has allowed chartered legal executives to carry out many of the same functions as solicitors. Indeed, during the pandemic, the Land Registry used its discretionary powers to accept copies of lasting powers of attorney certified by chartered legal executives.

For clarity, clause 2 extends to Scotland and Northern Ireland. The Government’s position is that no legislative consent motion is needed as the changes are consequential to the legislation in England and Wales. By amending the current legislation and enabling chartered legal executives to certify copies of powers of attorney, we will remove the barrier facing chartered legal executives in the provision of this service, increase the channels through which consumers can certify a copy of a power of attorney, and promote consumer choice and generate competition in the legal services market.

Clause 3 confirms the Bill’s short title, makes provision for the Bill to come into force and sets out its territorial extent. Clause 2, relating to chartered legal executives, will come into force two months after the Bill receives Royal Assent, while the remaining provisions, which relate to modernising lasting powers of attorney, will come into force by regulation.

Clause 1 and the schedule extend to England and Wales, save in respect to evidence of registration, dealt with by paragraph 8 of the schedule, which extends to Scotland and Northern Ireland. That relates to what can be accepted as evidence of an LPA registered in England and Wales and so aligns the new provisions for evidence with the territorial extent of the existing provisions of the Mental Capacity Act 2005 that are being amended.

Clause 2 also extends to Scotland and Northern Ireland, because it is about the acceptance of certified copies of powers of attorney made in England and Wales and therefore has the same territorial extent as the provision in the Powers of Attorney Act 1971 that is being amended.

Overall, the Bill relates to the process of making and registering an LPA in England and Wales. It will not affect the making of LPAs in Northern Ireland and Scotland, as they have their own mental capacity legislation, which makes similar provisions in those territories.

I will now talk in detail about each of the changes set out in the schedule, which fall loosely into five categories: simplifying the process of applying to register a lasting power of attorney; changing how people are notified that a lasting power of attorney has been submitted for registration; introducing identity checks; streamlining how objections to the registration of an LPA can be made; and providing for electronic evidence of the LPA, alongside physical evidence.

To make the application process simpler for donors, I am introducing three changes. My Bill removes the ability of an attorney to apply to register an LPA, thus maintaining donor control of the process. In the future, the donor will apply at the point they execute the document, and the signatures of other parties will be co-ordinated through the Office of the Public Guardian. The Bill also allows the fee to be taken at a different point. In combination, these changes will facilitate a hybrid system that allows different actors to use different channels and will therefore improve access to LPAs.

My Bill makes a small but necessary change to the notification process by requiring the Public Guardian, instead of the donor, to notify named persons, donors and attorneys when a completed LPA is ready to start the registration process. That simplifies the process for those applying to register their LPA and means that the Public Guardian can be certain that notifications have been sent to all parties so that they have the opportunity to raise any objections. That is a key safeguard. In exceptional circumstances, the Bill will allow the donor to ask the Public Guardian to disapply the notification requirements.

The change that will have the biggest impact on enhancing safeguards for the donor is the introduction of identity verification. My Bill gives the Public Guardian the ability to conduct identity checks on individuals involved in making, or who are named in, the lasting power of attorney, as a condition of its registration. If the identity cannot be verified, the LPA must not be registered without a direction from the Court of Protection. Regulations will set out the detail of who will be checked, when and how. I am confident that this will reduce the chances of any fraudulent LPAs being registered, and ultimately increase user confidence in LPAs and the system as a whole.

The Bill also strengthens safeguards through changes to the objection process. To simplify the process and to avoid discouraging genuine objections, I am introducing three changes. My Bill will allow anyone with an objection to register it. All objections will be directed to the Public Guardian in the first instance to be triaged and investigated where necessary. That formalises the process that the Public Guardian already operates. Additionally, third parties will now be able to lodge an objection from the time the Public Guardian is aware of the donor’s intention to make an LPA. Conditions for that will be set out in regulations. These changes will strengthen safeguards for the donor, particularly against abuse and undue pressure, by providing a clearer and more streamlined process for anyone objecting to the registration of a lasting power of attorney.

[Peter Gibson (Darlington) (Con)]

I commend the work that my hon. Friend is doing on this important Bill. I declare an interest as a former solicitor. Having prepared many hundreds of lasting powers of attorney, I strongly welcome the changes that the Bill will make in terms of safeguards and improvements in processes.

However, I recently met Age UK, and I share some of its concerns about keeping access to paper-based systems for those who are digitally disadvantaged or not familiar with digital processes. Could my hon. Friend reassure us that those systems will remain accessible? I would also be failing in my duties as a lawyer, with my years of experience, if I did not put on record the recommendation that legal advice should, wherever possible, be taken to look at these documents.

[Stephen Metcalfe]

I am grateful to my hon. Friend for his intervention. He makes two important points. On the first, I emphasise that there is no intention at all—in my Bill or in any other thinking—to do away with the paper-based system. People will still be allowed to apply for an LPA using the paper-based system. However, the Bill introduces an electronic system, which will hopefully streamline the process and reduce the paper burden on the Office of the Public Guardian, making it more sustainable in the long term.

On my hon. Friend’s second point, seeking legal advice is a sound recommendation in many areas, but, particularly when creating something as powerful as a lasting power of attorney, it cannot be a bad idea to seek the advice and guidance of someone with professional qualifications and experience. For many people involved in making a lasting power of attorney, it may well be the first time they have done anything like it. Seeking the advice of an expert is sensible.

Finally, as we all know, LPAs are currently paper documents. To reduce reliance on paper, the schedule provides that all future LPAs will be electronic documents accessed through electronic means, as well the paper channel. The effects of that change will be increased efficiency, accessibility and confidence for users in the new system.