Powers of Attorney Bill

Simon Baynes Excerpts

3rd reading
Friday 17th March 2023 Commons Chamber

[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.

--- Later in debate ---

[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.

[Jane Stevenson (Wolverhampton North East) (Con)]

I hope I am not going beyond the scope of the Bill, but does my hon. Friend share my concern about local council provision, which has to balance digital accessibility with maintaining access to many services for a generation who are less familiar with tech? On powers of attorney, there needs to be clarity for people who are approaching that time. It cannot be only digital; there needs to be physical help and access. I am concerned that in some services councils provide, such as parking, council tax or green bin collections, they are going digital slightly too quickly.

[Simon Baynes]

I thank my hon. Friend for an excellent intervention, as always. She makes an extremely important point. Many constituents come to me in Clwyd South, as I am sure they come to other hon. Members, to ask for assistance in accessing such services. I agree that maintaining a paper route alongside a digital route is extremely important.

I do think, however, that the covid pandemic has changed how people embrace interactions with organisations and public services. That is reflected in user feedback that the paper-based process is cumbersome, bureaucratic and complex. I have to say that in the brief two months that I was a Minister I had a lot of interactions with the Office of the Public Guardian, and there are big backlogs in the granting of powers of attorney and lasting powers of attorney. I am sure that the Minister is addressing those backlogs with great efficiency and vigour, but I certainly think that the cumbersome, bureaucratic and complex nature of the process is a real issue. If the Bill can bring greater efficiency to the dispatch of business, it will make a big difference.

[James Wild]

From his experience with the Office of the Public Guardian, does my hon. Friend know whether its senior managers have bonuses and performance measures that are linked to delivering the target of a 20-week processing time? That target is so important to so many people, particularly those who are in a vulnerable situation.

[Simon Baynes]

I think it is for the Minister to comment on that point, and I would not wish to tread upon his territory. However, from what I saw when I held the position, I am sure that the OPG is chasing the backlog with the greatest efficiency it can muster. One problem, which goes to the heart of the Bill, is that when people work from home, as they did at the OPG during covid, a paper-based system creates huge delay and problems. People can work on a digital system on their laptop at home, whereas with a paper-based system they really need to be in the office. The delay is perfectly fair and understandable in the light of the covid pandemic, which had a particularly acute effect in this case.

[Stephen Metcalfe]

I should apologise for not mentioning my hon. Friend in my speech, because I am very grateful for his help and support with my early work on the Bill last summer. I was very impressed by the knowledge and experience that he had gained in such a short time.

When my hon. Friend was the Minister, was he as surprised as I was while researching the Bill by the sheer volume of paper with which the Office of the Public Guardian has to deal? The forms are cumbersome, with many pages, and the number of applications runs into thousands daily. With 11 tonnes of paper floating around, it is not surprising that there is a backlog. I hope that the Bill will not only help to alleviate that backlog, but prevent it from happening ever again.

[Simon Baynes]

I thank my hon. Friend for his intervention. Yes, I was surprised, but, as he said, it is a cumbersome paper document to fill in. Clearly, the necessity for lasting powers of attorney was increased by the covid pandemic. The fact that people were not able to see somebody in person exacerbated the situation. The forms are also not easy to fill in. The problem that the Office of the Public Guardian has, which is not its fault at all, is that if a form is not filled in correctly, it has to send it back again for changes to be made. Although we can say that that is just bureaucracy run wild, it is not at the end of the day, because this is a vital legal document. The care and support for vulnerable people that it provides means that this has to be done properly, so I fully agree with my hon. Friend.

The modernisation provides the opportunity to update the protections provided by the LPA to align with the new world and the ever-increasing move towards the use of digital technology. There are new opportunities to improve safeguards against fraud, abuse and undue pressure. At the same time, there is the opportunity to make the OPG more sustainable through increased efficiency, and make lasting powers of attorney more widely accessible through multiple channels of creation. Accessibility and safeguards are very important parts of that.

I have two other points to make, then I will call it a day. The consultation received 313 responses and the overall response to the proposals was positive. I am pleased that, as a result of the feedback, the Government feel confident that they can build a modernised LPA service. I take on board the point that some hon. Members have made that creating a new digital service can be quite complicated technologically. There are cases in which there is not a great precedent for that, but this is something that we need to do. Other systems have been created in local councils and central Government, so I am sure that it cannot be that difficult to do it. None the less, the retention of both a digital and paper channel is vital.

I wish to finish by referring to comments made by Stephanie Boyce, the president of the Law Society. My hon. Friend the Member for North West Norfolk (James Wild) also referred to her in his excellent speech earlier. She said:

“LPAs are arguably one of the most important legal documents that a person will make because they delegate such wide-reaching powers over their life.

The consequence of an attorney making a poor decision could be the loss of all their assets, being put into a care home against their current or past wishes, or even their premature death.

We welcome the MoJ’s commitment to improve the speed and accuracy of making an LPA, as well as to continue to provide a paper service. Many people—such as those in care homes or people with learning difficulties—will continue to need to make an LPA via a paper process.

We are pleased the Government is looking at proposals to improve support for those who will struggle with using digital channels, as more needs to be done to ensure the reforms do not negatively impact vulnerable, disabled or older people.”

That is clearly an authoritative voice in support of the Bill tabled by my hon. Friend the Member for South Basildon and East Thurrock and sums up very well how I and, I suspect, many other people here today feel about it.

In conclusion, I wish to thank my hon. Friend again and pay my respect to him for introducing the Bill and for improving the performance of LPAs to the benefit of many vulnerable people, across the whole of the United Kingdom, at a very difficult time in their lives.