Powers of Attorney Bill

Mike Freer Excerpts

2nd reading
Friday 9th December 2022 Commons Chamber

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

I thank my hon. Friend the Member for South Basildon and East Thurrock (Stephen Metcalfe) for promoting this vital Bill. I look forward to supporting him as the Bill completes its journey and, I hope, makes its way on to the statute book.

My hon. Friend did an effective job of laying out the provisions of the Bill and its purpose. It is immediately clear both from his words and from the contributions of Conservative colleagues—I will turn in a few minutes to the question raised by the shadow Minister, the hon. Member for Stockton North (Alex Cunningham)—that we all recognise that a lasting power of attorney is a vital resource and how important it is to ensure that the process has sufficient safeguards, while remaining accessible and efficient.

It is a deed that gives peace of mind and assurance to individuals, should there be a time when they lose mental capacity to make decisions for themselves. It gives them peace of mind that there is a pre-selected loved one or professional there to help them, whether to provide support and make decisions about managing their financial affairs, or to make decisions relating to their healthcare. A lasting power of attorney ensures that a person’s wishes and preferences can be taken into account, and reduces the stress and burden on families when capacity is lost unexpectedly.

My hon. Friend rightly highlighted in his opening remarks that we are living in a society with an ageing population. One of the implications of this is that we are likely to see an increase in people who lack mental capacity due to age-related conditions. For example, as my hon. Friend the Member for Broadland (Jerome Mayhew) mentioned, the Alzheimer’s Society says that there are currently around 900,000 people with dementia in the UK. That figure is projected to rise to 1.6 million by 2040, meaning an increase in the number of families who will find themselves faced with the reality of needing to make critical decisions about their loved one’s finances or welfare.

I know that those can be difficult decisions, talking about and preparing for the worst-case scenarios, including preparing for loss of capacity. It can be harrowing for people, their friends and their family. However, preparing early is the key to ensuring that life can continue in the way the person wanted. Putting in place a lasting power of attorney gives family and friends an insight into a person’s wishes and preferences and who they would like to make decisions on their behalf when they are unable to do so. Given the importance and significance of the document, and the gravity of the power it confers, it is absolutely right that we look at how we can make the process for making and registering a lasting power of attorney safer, simpler and more accessible.

I am grateful to my hon. Friend the Member for South Basildon and East Thurrock for setting out so eloquently the problems that exist in the current system. Members of this House will be aware that the Ministry of Justice has consulted on potential solutions to some of those challenges, and I am delighted that the Bill promoted by my hon. Friend reflects and builds on the Government’s response to the consultation.

Turning to the question raised by the shadow Minister, in terms of the capacity issue, the Government remain committed to the principle of supporting decision making but believe that that is provided best by the Mental Capacity Act 2005. The proposals in the consultation were carefully considered by the Government, but we still have concerns that a formal framework may be unnecessarily legalistic and would overlap with other provisions, such as advocacy.

I want to give a commitment to the House that we are seeking to ensure that the system is as simple and easy to navigate as possible. My hon. Friend talked about the current backlog in the Office of the Public Guardian, which is leading to longer waiting times for LPA registrations. That has been exacerbated by the limitations arising from the current legislative framework and the operational practice it requires. My hon. Friend explained that all LPAs are currently made on paper, which creates a huge logistical burden on everyone involved. It is also not reflective of the needs of users in today’s society, but I take on board the point made by my hon. Friend the Member for Devizes (Danny Kruger) about ensuring that, as we embrace technology, we must also ensure that there are sufficient checks and balances for those who may be vulnerable to abuse.

Frankly, people expect Government services to be available online, while also having the option to do things on paper when they prefer to. I am pleased that the Bill will create a digital channel to make an LPA, while also improving the paper channel for those who need or choose to use paper. A digital route will make LPAs more efficient and realise many benefits. It will allow for a speedier process, reduce the administrative burdens on individuals and automate many checks that should reduce the risk of errors in the paperwork that often delay registration and therefore the ability to use the LPA.

The Bill goes further than simply the digital and paper channels. By facilitating a more flexible system, the ability to move between the channels to create a single LPA will provide a far more flexible service and far more benefits to a wider group of people. Even those who want to use paper will benefit from others using digital elements in the process. The challenges faced by the OPG cannot be solved without reform, which is why I am grateful for the improvements that the Bill seeks to facilitate. I am confident that by introducing a digital process and automated checks and reducing some of the burdens on the organisation, we will build resilience into the process, meaning that people will be able to register their LPAs more quickly. It should also significantly reduce the chances of backlogs forming.

I assure the House that the vast majority of LPAs—there are currently more than 6 million on the register—are used properly to provide the support they are intended for. However, we know that LPA fraud and abuse takes place, and steps must be taken to address it. In 2021-22, the OPG investigated 2,408 LPA cases in response to concerns received. Of those, the OPG took remedial action in 649 cases. Such action can include an application to the Court of Protection to remove an attorney or revoke an LPA, as well as working with the attorney to provide education and guidance on how they should carry out their role.

Although the matters I have outlined apply to a very small proportion of the LPAs registered by the OPG, the impact on the individuals who experience abuse can be significant, which is why I am pleased that the Bill includes provisions to make the process more secure, especially for the donor, and lays the groundwork for further changes to be made in regulations.

In line with the Government’s consultation response, the Bill introduces identity checks as a requirement of registration. This is an important safeguard that will assure the OPG that those who claim to be involved in the LPA are who they say they are and reduce the risk of fraud by false representation. Regulations will support the change by specifying who will be subject to checks—the donor and the certificate provider—as well as how those checks will be carried out and which documents will be acceptable. I am committed to providing a wide range of options as soon as possible, given that the average age of a donor is currently 74 and most are over 65.

Provisions are being made to streamline and improve the objections process so that it is easier to lodge a concern with the OPG. That is a vital safeguard that will include those with a legitimate concern—such as local authorities, care workers and even the police—who previously did not have a formal route through which to express their concern.

My hon. Friend the Member for South Basildon and East Thurrock pointed out that the Bill gives us the levers to make further changes in regulations that will improve other protections, including the role of certificate providers. By having the certificate provider take on the role of witness, we are strengthening safeguards. In addition to this increase in safeguarding, by combining the roles of certificate provider and witness we will also reduce the burden on the donor.

I am pleased that the Bill also addresses the role of chartered legal executives. It cannot be right that a chartered legal executive—a legally qualified Chartered Institute of Legal Executives lawyer—who legitimately participates in the creation of a power of attorney should be rendered unable to certify as genuine a copy of the same document that they were instrumental in creating. The Bill will address that anomaly.

In closing, I reiterate how vital the improvements in the Bill are to support individuals to make a lasting power of attorney and to certify copies of such important documents. The efficiency savings will ensure that donors and attorneys have a better system, with the savings made reinvested to increasingly improve the service, so it is an all-round benefit.

Finally, I reiterate my thanks to my hon. Friend the Member for South Basildon and East Thurrock and thank my hon. Friends the Members for Devizes, for Darlington (Peter Gibson), for Scunthorpe (Holly Mumby-Croft) and for Broadland for their contributions.

Powers of Attorney Bill

Mike Freer 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.

[Stephen Metcalfe]

I will add a few thanks to the Minister’s, in particular to my hon. Friend the Member for Darlington and the hon. Members for Newcastle upon Tyne Central and for Glasgow North for their contributions, and to all Members for their attendance and support. I thank the Minister for his positive support, all the officials who helped to bring the Bill to this stage, and you and your team, Mrs Murray, for keeping us all on track.

As the Minister and I have said, this is a relatively small and short Bill. It is tight in its provisions and scope, but it will have a huge impact on people’s ability to make a lasting power of attorney and it will introduce some particularly welcome safeguards. I am grateful for the support, and I hope that everyone will continue to support the Bill as it moves through the House.

My final thank you is to all the external organisations that have been in contact with me throughout the process of sponsoring the Bill. I thank them for their advice, their views and their general support for what we are trying to do.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clauses 2 and 3 ordered to stand part of the Bill.

Schedule agreed to.

Bill to be reported, without amendment.

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.