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Powers of Attorney Bill

Volume 830: debated on Friday 16 June 2023

Second Reading

Moved by

My Lords, the Bill will modernise the process for making and registering lasting powers of attorney and will enable chartered legal executives to certify copies of powers of attorney. I welcome all Members here today, whether to listen to or participate in this debate. This is a good example of an entirely bipartisan Private Member’s Bill. It passed the other place with all-party support and without amendment. It was introduced and steered through by my good friend and colleague Mr Stephen Metcalfe, the Member for South Basildon and East Thurrock, who is a government Back-Bencher. It is now being shepherded through this House by an opposition Back-Bencher—the very definition of bipartisanship. I am delighted that Stephen Metcalfe is present today to watch our proceedings.

Before I get to the Bill, I want to establish something at the beginning. The Bill affects the lives of people all over the country. Over 6 million lasting powers of attorney are currently lodged with the Office of the Public Guardian—frankly, I found that an astonishing number when I first discovered it. That means that families up and down the country have an interest in the subject of today’s debate and I dare say that Members of your Lordships’ House have, both personally and professionally, had personal contact with the LPA process. I should add that I am one of them. A few years ago, my younger brothers and sister took out a lasting power of attorney in respect of our dad, with his full agreement, although it was not necessary in the end.

Turning to the Bill, I refer all Members to the excellent House of Lords Library briefing, which provides everything that they might need to know. Clause 1 introduces the schedule to the Bill and amends the Mental Capacity Act 2005 for making and registering LPAs. Clause 2 adds chartered legal executives to the list of those who can certify copies of LPAs. Clause 3 sets out the Bill’s territorial extent and application—basically, the Bill extends to England and Wales only and it will come into force in stages.

What is an LPA and what is its significance? An LPA is a legal document that helps people to plan for their future. It allows an individual, known as the “donor”, to plan for circumstances where they can no longer make decisions for themselves due to a loss of mental capacity, by granting such powers to another person—an “attorney”. People can apply for, broadly, two main types: first, a health and welfare LPA, which can make decisions about a person’s medical care and treatment; and, secondly, a property and finance LPA, which can make decisions about a person’s money and property. Thus an LPA lets an individual choose the people they trust to be attorneys to support them and make decisions for them if they lose the mental capacity to make their own decisions in the future—for example, due to an illness like dementia, or through an accident.

LPAs are increasingly valuable and necessary as our population ages. No one likes to think about a loved one losing the ability to make their own decisions, but this is, sadly, a reality for so many people. Two nights ago, on Wednesday, I went to a meeting at the Royal Society about the impact of AI on medicine. The capacity to analyse images will mean that, before very long, it will be possible to give people 15 years’ advance notice that they are likely to get dementia or Alzheimer’s. This will have quite a significant impact on people’s lives and, probably, on the LPA process.

My colleague Stephen Metcalfe in the other place spoke about the importance of a quick and accessible process. This Bill will give people the assurance that their family can act in their best interests and make life as comfortable as possible in their later years. It is with great frustration that I say that this is not necessarily the reality that people face today.

One of the problems is the sheer volume of paperwork. Many people find the current process for making LPAs stressful and needlessly complicated. Registering an LPA takes time. The latest figures show on average that the Office of the Public Guardian receives 5,700 LPAs each day—all of them on paper. The number of applications will exceed 1 million for the first time this year.

Once the Office of the Public Guardian receives an LPA, it must conduct manual checks on each piece of paper to confirm that it has been filled in correctly. As one can imagine, this is an entirely time-consuming process and many users find it cumbersome, bureaucratic and complex. That is an understatement. Frankly, the Office of the Public Guardian is at risk of financial unsustainability because its costs are increasing. What is more, if the LPA has been filled out incorrectly, it must be returned and corrected. In some circumstances, a new LPA must be made, which increases the delay to registration.

The Bill offers some solutions and the detail is outlined in the schedule. The Bill makes changes to the Mental Capacity Act 2005 to make it safer, easier and more sustainable to make and register an LPA. I will take these points in turn. First, how does it make it safer? Reforming the way in which people make and register their LPA will allow the Public Guardian to strengthen protections against fraud, undue pressure and abuse. The most crucial new safeguard is to allow the Public Guardian to verify identity as part of the registration process, which will help to prevent LPAs that have not been legitimately made.

As well as identity checks, the objection process has been redesigned to ensure and enhance safeguards where there are concerns about how an LPA has been made. This is an important early protection against an LPA being misused after registration. While it cannot catch all potential abuse—in reality, the number of such cases is very small—it is important that anyone with grounds for objection can raise them before the LPA is registered so that these concerns can be properly considered. Individuals must therefore understand how to lodge an objection to the registration of an LPA and everyone with grounds to object must be able to do so. The Bill simplifies the objections process by having the Public Guardian receive all types of objections in the first instance and allows anyone to make an objection. The Bill also requires the Public Guardian to notify all relevant parties when a completed LPA is ready to start the registration process. This relieves the donor, as in the past, of a great deal of the burden of doing so. Other protections that were supported during debates in the other place included restricting who can apply to register the LPA only to the donor. These changes combined will help to remove loopholes in the system so that they cannot be exploited to the detriment of the donor. This is one of the reasons why I hope that this House will support the Bill.

I turn to the ways in which the Bill will make the process easier. The Bill makes provision to help the public by, for the first time, facilitating a digital channel and enhancing the paper route. This is an important point, which is worth emphasising. The Bill will open up a digital alternative and this will have many benefits in the future. I must stress that the paper-based route to getting an LPA will remain, but this multichannel system will allow parties to move between channels to create a single LPA. As the debates in the other place highlighted, this flexibility will ensure that a wider group of people can create LPAs more easily. It is envisaged that all LPAs will eventually be stored in digital form, but of course if people want a paper copy, they will be provided with one.

On sustainability, there is currently a huge burden on the Office of the Public Guardian due to the manual processing of paper. I feel sure that the House instinctively understands this. A digital LPA will help to reduce the amount of paper that the Office of the Public Guardian has to receive, process and store. Each day, the OPG has to process 80,000 sheets of paper. The annual number of documents with which it has to deal amounts to roughly 11 tonnes of paper. Hence, noble Lords can understand how a digital alternative would allow the Office of the Public Guardian to redirect resources and invest in wider service provision. Provision of both the digital and paper channels will also build resilience into this process and help to reduce the likelihood of future backlogs. This will create a more positive experience for everyone involved in making LPAs better value for the fee payers.

The benefits of modernising LPAs do not stop there. The Bill means that future LPAs will be evidenced electronically, increasing accessibility for attorneys and others, who will be able to access an LPA through their electronic devices and securely share it with third parties when managing their loved ones’ affairs. Furthermore, third parties can have more confidence in LPAs, because they can check the status of the document in real time. This will be outlined in more detail in the secondary legislation.

So far, I have spoken only about the changes outlined in the Bill as they will affect LPAs; however, the Bill also allows chartered legal executives to certify copies of LPAs. This provision addresses the anomaly where chartered legal executives are able to participate in the process of setting up an LPA but are unable to certify copies of the same document. The Chartered Institute of Legal Executives has long argued for the removal of that statutory barrier, which is why Section 3 of the Powers of Attorney Act 1971 is being amended. The institute estimates that it will enable over 3,000 more lawyers to certify copies of LPAs, which, in turn, will facilitate competition and enhance access to this service for many consumers, with the potential for a reduction in the cost of service provision.

Licensed conveyancers have been assisting organisations with evidence of powers of attorney in many instances for many years. I would be grateful if the Minister could expand on the fact that the Bill is not intended to interfere with that process.

Finally, I turn to the Bill’s territorial extent and commencement, as set out in Clause 3. The Bill’s main provisions relate to England and Wales only, but there is some consequential effect on Scotland and Northern Ireland. Unfortunately, as the House knows, there is no working Assembly in Northern Ireland, but, on whether or not a legislative consent Motion is needed in respect of Scotland, I am very glad to report that one has been granted. Two days ago, a point was raised with me by the Law Society of Scotland regarding the automatic operation of Scottish powers of attorney in England. I believe that this issue was covered in a letter that the Minister of Justice wrote to Mr Patrick Grady in another place, but perhaps the Minister could cover that from the Dispatch Box.

As for commencement, Clause 3 comes into force on the day that the Bill becomes law; Clause 2 comes into force two months from the day it becomes law; and Clause 1 and the Schedule will come into force in subsequent regulations by the Lord Chancellor.

Since LPAs were first introduced in 2007, people’s expectations have changed, as has technology. People now expect digital services with appropriate safeguards. We need an LPA system for the digital world; this Bill provides it. It is narrow in scope and seeks to bring about real improvements. It tries to strike the right balance between improving efficiency and accessibility, while strengthening safeguards against fraudulent or abusive use of the system to protect the most vulnerable people in society, and it comes at a very modest cost to the public purse. I believe it will be successful in achieving its objectives, and I hope all noble Lords will join me in giving their full support to this important Bill. I commend it to the House and beg to move.

My Lords, it is a privilege to follow the noble Viscount, Lord Stansgate, who introduced the Second Reading of the Bill comprehensively, fairly and persuasively. As he said, the bipartisan nature of the Bill is both striking and very welcome. It was introduced by Stephen Metcalfe MP, of my party, in the other place, and is now being championed in your Lordships’ House by the noble Viscount, of a different political persuasion, and that is very welcome indeed.

The purpose of a lasting power of attorney is to provide support and protection to the donor in the event that they lose mental capacity and are no longer able to make their own decisions in the future. Like the noble Viscount, Lord Stansgate, I have some personal experience of this. My uncle Bernard, of blessed memory, who was childless, asked me to take on these responsibilities and appointed me with a power of attorney. Like the noble Viscount, I never had to use it in the end, but I remember him telling me that knowing it was there gave him comfort, because he knew that if decisions had to be taken, they would be taken by somebody who knew him and what he wanted. Therefore, the Bill’s modernising of the process and the system for effecting an LPA is very welcome.

LPAs were introduced, as the noble Viscount said, by the Mental Capacity Act 2005. In addition to supporting this Bill in an unqualified way, the other purpose of this very short speech is to say a couple of words about the Mental Capacity Act 2005, because it is now nearly 20 years old. In that time, our understanding of mental health and its many challenges have increased. Technology has also advanced in that time, and indeed one of the advantages of this Bill is to bring in a digital system, although, as we have heard, a paper-based system will be retained. I am delighted to see that a digital process is being introduced. This is but one example, I suggest, of how much of our civil justice system and processes—this is ultimately part of civil justice—can be brought online and digitalised. We need more examples of this going forward.

One of the remaining problems, as we have heard, is delays in the Court of Protection process. Let me be very clear: that is not the fault of the judges. The judges in that court—indeed, all our courts, but especially in this court—work extremely hard and deal with some of the most difficult cases our judges have to consider. They are literally dealing with matters of life and death on a daily basis. But the court does need more resources, and I know my noble and learned friend the Minister is aware of that.

I have one final point, which arises in relation to LPAs, as well as other matters arising under the Mental Capacity Act, such as child trust funds, about which your Lordships’ House has heard on a number of occasions. It is always very tempting to make things easy, or easier, for the person who needs the assistance, whether that is the terminally ill patient or the mentally incapacitated child. However, there is a balance to be struck. On the one hand, we want to provide assistance to the person in need, but on the other hand, we also need to ensure that there is sufficient protection for that person. This Bill strikes that balance extremely well, and I am very happy to support it.

My Lords, it is a pleasure to follow the noble Viscount and the noble Lord. I rise briefly to voice my support for the Bill and its aims.

Lasting powers of attorney are invaluable tools for people who are likely to lose capacity and the ability to convey their wishes, allowing them to have control over their future lives. We talk about keeping our affairs in order most frequently through the lens of our finances and property; there is much to be done in terms of safeguarding against fraud and financial abuse, and the Bill will do much to address those concerns. However, we do not talk often enough about the equally important—but, I expect, somewhat less well known—option of a lasting power of attorney for health and welfare. Just as you can nominate someone to make decisions about your finance and property if you lose capacity, you can nominate someone to make those same decisions in health and care settings. My sister and I had to do that for our mother, and it was very successful, because she had thought long-term in advance.

The provisions in the Bill that allow for LPAs to be completely digital are important, as they will remove barriers to completing them by streamlining the process. It will reduce the time it takes to complete the process and for the Office of the Public Guardian to complete its necessary checks, which will also give people greater confidence in the process.

While the Bill is necessarily focused on the reform of powers of attorney, I want to highlight a related issue that is also in need of a modest but important digital reform. Living wills, known officially as advance decisions to refuse treatment, allow a person to say now if there are treatments that they do not wish to be given in the future, should they lose the capacity to communicate. Like LPAs, they were formalised by the Mental Capacity Act 2005 and, under the law at present, must be signed using a so-called wet signature. This prevents them being fully digital, which in turn makes these important documents very difficult to share across care settings and to be visible when it matters most.

The impact of this is clear. Many people are going to great lengths to consider and record their end-of-life wishes but, very sadly, often they are not known about due to the paper forms being lost or not properly uploaded to a medical record, or due to their local area’s digital record systems not allowing them to be shared. This can be of particular concern when a person’s records might be shared between GPs, hospitals, community care, ambulance services or care homes, for example. In real and simple terms, it means that sometimes people are given treatments that they would not want, all because the system by which records are shared has let them down.

The impact for the individual can be catastrophic and result in a much more complicated bereavement for loved ones. Compassion in Dying, a charity that supports people at the end of life to record, discuss and communicate their wishes, has asked me to raise this point at Second Reading. It too is fully supportive of the moves to reform powers of attorney, but urges us as legislators to consider making similar moves in the near future to ensure that living wills can benefit from the same reforms and so make it easier for our wishes to be respected if we ever lose the ability to make or communicate those wishes for ourselves.

According to the people supported by Compassion in Dying, the very fact that living wills are difficult to share, and the concern that they might not be available to healthcare professionals when they are needed most, is a barrier to even starting the process. Compassion in Dying says:

“We are convinced that enabling digital signatures on Living Wills in a safeguarded way would transform the experiences of thousands of dying people in the UK. Being able to know what matters to each person is a central part of high-quality care: allowing for fully-digital Living Wills would make this so much easier for so many”.

I welcome this Bill and its noble effects, and hope that the separate but equally important issue of living wills can be addressed in the very near future.

My Lords, I congratulate my noble friend on introducing the Bill so comprehensively and fairly, as the noble Lord, Lord Wolfson, said. I also congratulate Mr Metcalfe on steering it through the other place.

The provisions in the Bill are much needed, and the Labour Party is pleased to support them. A lasting power of attorney ensures that an individual’s personal wishes and preferences can be considered when capacity is lost, which can massively reduce the stress and anxiety for their family through an extraordinarily difficult time. However, the process for making and registering a lasting power of attorney has long been due an update. The current paper-based process can be confusing and bureaucratic. We wholeheartedly welcome the modernising measures in the Bill. We need to plan now for the challenges that will face our legal system in the coming decades.

I hope that these changes will help to future-proof our system and ensure that the case load of the Office of the Public Guardian, which is already beset by delays and backlogs, as we have heard in this short debate, does not become completely unmanageable as our population continues to age and the number of people living with illnesses that can affect their capacity increases.

The need and demand for lasting power of attorney will increase significantly in the coming years, so the creation of a digital process to streamline much of the work is a necessity. Currently about 900,000 people in the UK have a diagnosis of dementia. According to Dementia UK, that number will rise to more than 1 million by 2025 and is projected to rise further, to 1.5 million, by 2040. We are pleased that the paper application route will remain in place for all those who need it. Current figures suggest that about a quarter of those over 65 do not have easy access to the internet. Applying for an LPA can be a difficult process at the best of times, so it is right that the paper route is kept open so that applicants can apply by whichever means most suits them.

It is very welcome that the Bill will amend Section 3 of the Powers of Attorney Act 1971 to enable chartered legal executives to certify copies of powers of attorney. They are legal professionals who can carry out many of the same services as a solicitor, so it is good to see that inconsistency addressed. The Bill builds on several welcome safeguards, including the introduction of identity verification, restricting who can apply to register the LPA and changes to the objections process. The Law Society has raised some additional safeguarding concerns that I want to bring to the attention of the Minister. First, has he considered amending the Mental Capacity Act 2005 to make it clear that the certificate provider has a responsibility to confirm that the donor has the mental capacity to make an LPA?

Secondly, can the Minister confirm whether future guidance on the role of the certificate provider will include questions for them to ask the donor that will test whether they can rely on the presumption of capacity? Thirdly, what steps is he taking to ensure that a certificate completed by a certificate provider for an LPA application shows that the certificate provider has been satisfied that the donor understands the information relevant to the decision to execute the LPA, and that the provider can retain the information that was used to weigh up the decision to put the LPA in place?

The noble Lord, Lord Wolfson, spoke about his family experience, and I suspect that many people, including me, have experience of legal powers of attorney. I currently hold one for my mother, who I will see later today, but I obviously hope that I will not have to invoke its powers. I understood the point that the noble Baroness, Lady Watkins, made about living wills. We are very sympathetic to the points she made, but she also accepted that this is an issue for an amendment to a different Bill, or for another Bill standing in its own right. Nevertheless, we are very sympathetic to her point. We welcome this Bill.

My Lords, the Government wholeheartedly support the Bill, and I thank the noble Viscount, Lord Stansgate, for setting out so eloquently and clearly its content and purpose. So clearly has he set out the Bill that I do not think I need repeat what it says, save to say that there are essentially four main aspects in relation to LPAs. It simplifies and digitises the process; it requires identity checks on the donor; it has a better procedure for objection involving, for example, local authorities, the police and other interested parties; and it provides that only the donor can register. I think those are the main points but, thanks to that very clear explanation, your Lordships are already fully seized of the content of the Bill and I will say no more about it.

I add the Government’s thanks to Mr Stephen Metcalfe for his great and persistent work in another place to bring this most important Bill to its present fruition. I hope he will accept our thanks and compliments for that very important work.

It is sometimes forgotten by the general public, I think, that both Houses of Parliament do important, detailed work on very detailed points. It is not a great political circus; we are working hard on matters of detail that affect people’s lives. As has been said, with over 6 million LPAs, increasing at the rate of a million a year, this really does affect people’s lives. For that reason, we are particularly grateful to the noble Viscount, Lord Stansgate, and others who have spoken in favour of this Bill.

I will deal with a number of the points raised in this debate. First, I stress that, although the process will be primarily electronic and will facilitate access to powers of attorney by other parties when the need arises—for example, a bank—if an attorney needs to activate the LPA, there will also be a paper channel so that those who do not have the internet or are not equipped to operate it can do so. It will be a fully flexible system so that donors, attorneys and others involved will be able to use whichever channel best suits their needs, be that digital or paper.

If there is a discrepancy between a paper copy and a digital copy, am I right in thinking that it will be up to the court to decide which of the two versions is correct?

My Lords, as far as I know, the noble Lord is entirely correct in his assumption. If I am, or he is, wrong, I will write accordingly to clarify that point. It will ultimately be for a judicial process—possibly for the Office of the Public Guardian, initially, and then for a judicial process—to determine which of the two conflicting versions is the “authentic” version.

This change, by reducing the laborious and very time-consuming verification of paper documents, will, or should, over time release resources for the Office of the Public Guardian to investigate and pursue cases that look dubious or are attempted frauds, or which raise other difficulties. So we see this as not only benefiting the donors and attorneys but removing burdens on the Office of the Public Guardian and allowing that very responsible organisation to reinvest its resources in enforcement or investigation, or in improving safeguards as necessary. So, for the reasons that have been given, the Government welcome this Bill very sincerely.

I will briefly address the points raised by other noble Lords. As my noble friend Lord Wolfson said, the Government fully support the work of the Court of Protection, and the judges of that court do magnificent work under very difficult circumstances. Of course, this is part of the wider digitalisation of the civil justice system, which the Government are also supporting and, if I may say so, making quite good progress on under the remarkable leadership of Sir Geoffrey Vos, the Master of the Rolls, who is very focused on digitalisation and the future of the justice system in that respect. As my noble friend Lord Wolfson said, we always have to find a balance in these systems between protection of the vulnerable and facilitating the processes. That, I hope, is the balance that has been struck under this Bill.

On the points rightly raised by the noble Baroness, Lady Watkins, the Government welcome the mention of health and welfare LPA. That is sometimes forgotten as a part of the machinery, but it is important; one never quite knows when one is going to lose one’s health and welfare, or to need an attorney to look after one from that point of view.

Living wills, as the noble Lord, Lord Ponsonby, said, is under separate legislation and is a separate issue. The point about the wet signature holding everything up and leading to people not knowing quite what the patient’s wishes are is an important one. The Government will certainly note the points that have been made today and continue to reflect on them.

On the points raised by the Law Society about the certificate provider and whether we have sufficient checks in that respect, the department is considering those and in due course will make proposals about the best way of achieving that. There could well be changes to the certificate itself, the forms used and the supporting guidance. I am not sure that legislation will be necessary, but we could tighten up the existing procedures, or at least review carefully whether they are sufficient, and test any potential changes with stakeholders and users to ensure that they achieve the core aims we need to achieve.

Scotland has been mentioned. The Scottish Government have given a legislative consent Motion. The UK Government felt that one was not needed, but at least there is one so that point does not arise.

Concern has been expressed by the Law Society of Scotland that powers of attorney granted in Scotland are not always readily recognised in England and Wales. The Government’s view is that that is primarily a question of raising awareness. There is no legal reason why a Scottish power of attorney cannot be recognised in England and Wales, as far as I am aware, so it is primarily a question of raising awareness and making sure that the relevant professionals are more familiar with the status of Scottish powers of attorney than may apparently be the case.

The noble Viscount, Lord Stansgate, noted the interest of licensed conveyancers in relation to Clause 2. I can confirm on behalf of the Government that the Bill is not intended to interfere with the previous or indeed ongoing practice of organisations such as the Land Registry accepting copies of powers of attorney from licensed conveyancers. So the licensed conveyancer will send in the documents that are necessary, which may well include a copy of the power of attorney. That is a long-standing practice that has given rise to no difficulty, and nothing in the Bill is intended to change that practice.

There is a second important aspect to the Bill, which is to enable chartered legal executives to certify copies of a power of attorney. That is not only correct in itself but is part of the Government’s general policy of facilitating CILEX members to carry out tasks and functions that other legal professionals, solicitors and barristers can carry out. Only yesterday, as the noble Lord, Lord Ponsonby, will remember, the Grand Committee passed statutory instruments enhancing the number of judicial appointments that CILEX members can aspire to. Together with this provision, that is also part of the Government’s overall policy of widening the pool of qualified lawyers so there is absolute availability of qualified lawyers.

I think I have covered the points that were raised. It only remains for me to reiterate the Government’s support for the Bill and to thank the noble Viscount, Lord Stansgate, in particular and other noble Lords who have spoken today.

My Lords, I will not detain the House, but I would like to say a couple of things. It gives me great pleasure to see my friend and colleague present to listen to the compliments paid to him today for having steered the Bill through the other place. It strikes me that so many contributors today have personal experience of the subject; it shows that, as I said, millions of people and their families up and down the country will find that this Bill affects them, I hope for the better.

It would be remiss of me not to thank noble Lords for some of the compliments I have been paid. I take it as a great compliment to hear from some of the legal experts in front of me that I have introduced a Bill—incidentally, the first time I have ever done so—in a “comprehensive way”, unless of course that is a hidden way of saying that I took too long to do so.

The points made by the noble Lord, Lord Wolfson, are very important. It is a great comfort to a donor to know that they have arrangements in place and I think the new procedures will assist. The noble Baroness, Lady Watkins, mentioned the issues raised by Compassion in Dying—as we know, they apply not so much to this Bill, which falls in a different area—which has been in touch with me. In fact, I spoke to Compassion in Dying this morning before this debate. I fully understand the way in which she raised these issues and know very well the reasons why they matter to people. I hope that one of the effects of this Bill reaching the statute book, which I hope it does, will be to further advance the causes she raised. I also thank my noble friend on the Front Bench for the support that he has given the Bill on behalf of the Official Opposition and the Minister for covering some of the points raised to the satisfaction, I think, of all concerned.

The last thing I will say is that this has been a fairly short but consensual debate. It has seen Parliament as it is supposed to be: a working environment, or a workshop, designed to try to bring about changes in people’s lives for the better. When you consider some of the attacks made on Parliament and the parliamentary process, you could do worse than look at a short debate such as this and see that it is possible to make real change in a consensual way—and I will leave it there.

Bill read a second time and committed to a Committee of the Whole House.