Previous Section Index Home Page

17 Jun 2008 : Column 238WH—continued

It is obviously necessary to ensure that there is an effective mechanism for power of attorney for people as they become older, but surely as the number of older people increases, particularly of those with substantial financial resources, we must look beyond registration
17 Jun 2008 : Column 239WH
and put in place better monitoring and an education mechanism. Perhaps there should be greater and more stringent requirements on solicitors to set out the options as people start to consider whether they should enter a power of attorney, and how they could be framed. We must have a special programme in place to deal with the legacy of the old EPAs, which will continue to have an impact on the lives of so many people today.

1.48 pm

The Parliamentary Under-Secretary of State for Justice (Bridget Prentice): I congratulate the hon. Member for Richmond Park (Susan Kramer) on securing this debate on an important and serious issue, and on getting under the wire so that we can have this discussion.

I intended to open my remarks with an outline of the importance of what we have put in place in the Mental Capacity Act 2005, but because of the time I hope that you will forgive me, Mr. Cummings, if I do not go into such detail. The hon. Lady has accepted that the 2005 Act and its attendant changes have been an improvement, and I shall refer to it only in passing, if necessary. If I do not cover anything that the hon. Lady has raised, I shall write to her in more detail.

The hon. Lady raised the possibility that vulnerable adults could be at risk from those with power of attorney over their affairs. The Mental Capacity Act 2005 was implemented last October and changed the way in which attorneys operate. She has also tabled a written question about the number of times the Court of Protection has suspended an individual’s power of attorney, and she made reference to that in her remarks. I said then that it might be possible to produce further data and that I would write to her with the results of that exercise. At the time, we did not have the information available. I can tell her that although that information has been difficult to collate, I am pleased to say that we now have some information on the number of objections to the registration of powers and the outcomes of those cases.

From 1 April 2004 to 30 September 2007—before the 2005 Act was implemented—there were just over 1,500 objections to the registration of an EPA, of which 621, or 40 per cent., were not registered. In the first six months of operation from October 2007, the new Court of Protection received 425 objections to registration of a power of attorney. Many of those cases are not yet completed, but the court has currently suspended one power, cancelled or revoked the power in 17 cases and has directed the Office of the Public Guardian not to register three others. I will write to the hon. Lady with further results of that analysis. To some extent, that answers some of her questions. At least under the new system, the powers are being looked at more vigorously and with far greater scrutiny, and action is being taken either directly by the Court of Protection or by the Office of the Public Guardian.

Let me return now to the broader theme. The 2005 Act provides a clear, statutory framework to empower and protect people who lack the capacity to make decisions for themselves. However, it requires steps to be taken to allow the person to make those decisions or to have the fullest input into any decision that is made. When a decision is made on their behalf, it is necessary that it is in their best interests and restricts their rights and freedoms as little as possible.

17 Jun 2008 : Column 240WH

The 2005 Act created a new Court of Protection with an expanded jurisdiction that covers health and welfare matters in addition to financial decisions. The court can appoint a deputy to manage a person’s affairs. In addition, the Act also created a statutory public guardian responsible for maintaining registers of powers of attorney and supervising deputies appointed by the court. The Office of the Public Guardian also has powers to investigate allegations of abuse made against attorneys or deputies.

The 2005 Act also changed how powers of attorney operate to provide greater flexibility in the way in which they can be used and to increase the protections surrounding them. The Lord Chancellor issued a code of practice under the Act so that certain groups of people, such as attorneys, are under a legal obligation to have regard to the code when making decisions. An attorney’s failure to comply with the code can be used as evidence in any proceedings that may be brought before a court or tribunal.

There is also a new criminal offence of abuse or neglect of a person who lacks capacity. That covers those caring for such a person, or those appointed as their attorney or deputy. The offence carries a maximum sentence of five years’ imprisonment, or a fine, or both so that it is not seen by the courts as a relatively small offence; it is seen as a relatively serious offence, and rightly so.

The case that the hon. Lady highlighted—I am aware of it but we will not go into any details—was made under the old system of the enduring power of attorney. It gave a person the authority to manage someone else’s property and financial affairs. As the hon. Lady said, under that system, EPAs could be used, quite legally, to manage a person’s affairs while that person still had capacity without any need for the power to be registered. They were required to register only once the donor had lost the capacity to manage their affairs.

Clearly, the difficulty with that system was that it allowed unscrupulous attorneys to use an unregistered EPA to access a person’s finances or manage their property, and to do that without anyone’s knowledge. As a consequence, it was also very difficult to estimate the total number of EPAs in existence and, worse than that, how many of them were being used fraudulently. We are very conscious of that issue, both in the Department and in the Office of the Public Guardian. We cannot give the hon. Lady a figure on the number of unregistered EPAs. She referred to the scramble by solicitors to encourage people to use EPAs before October. Those solicitors should have looked more closed at the Mental Capacity Act and realised the benefits of a lasting power of attorney. I know that it costs more, but it gives people far more control over their own affairs and far more control to the Office of the Public Guardian over the way in which people behave. Almost 40,000 EPAs have been registered in the past couple of years. We have to assume that the number of unregistered EPAs is significantly higher than that.

It is extremely difficult to make any accurate assumptions on the possible levels of abuse of the old system. However, the previous Master of the Court of Protection, now a senior judge of the new court, felt that as many as 5 to 10 per cent. of registered EPAs were possibly being used fraudulently. That included relatively low-level abuses, such as inflated claims for travel expenses.
17 Jun 2008 : Column 241WH
Nevertheless, that is not an insignificant number. More worrying, however, is the level of abuse of unregistered EPAs.

It was against that background that the 2005 Act reformed the system to provide greater protection. That means that before a person can have their lasting power of attorney registered, they have to comply with safeguards connected with that registration before the attorney can use them. The Office of the Public Guardian will be able to build up a much greater knowledge of the number of valid powers in circulation. Also, a person will be asked by the public guardian to name up to five people whom they wish to be notified when they make an application for an LPA to be registered. There will then be a statutory six-week waiting period during which objections to registration can be made. Only after that will the Office of the Public Guardian register the power.

Finally, when making an LPA, an independent person must provide a certificate confirming that the person making the LPA has the capacity to make it and is not subject to undue pressure. An additional certificate must be provided if the donor has not named anyone to be notified upon registration of the power. I hope that
17 Jun 2008 : Column 242WH
that answers one of the hon. Lady’s later questions about what is in place now to monitor and scrutinise what happens.

In the very brief time that I have left, I will describe what happens when there are concerns about the behaviour of the attorney. It will be for the Office of the Public Guardian to investigate in the first instance. Since last October, there has been a dedicated compliance and regulation team responsible for considering all the allegations brought to the attention of the Office of the Public Guardian. As a result of those, the office may approach the police, or any other relevant agencies, if it considers it appropriate. When there are serious concerns about personal welfare by attorneys or deputies, the office will always liaise with the relevant agencies. It is in the process of agreeing a protocol to outline the circumstances in which it will seek to involve those agencies.

While it is not appropriate for me to comment on the individual case that the hon. Lady mentioned—the way in which that case was dealt with is deeply unfortunate—I hope that I have given in general terms some of the ways in which the new system will benefit people in the future.

It being Two o’clock, the sitting was adjourned without Question put.

    Index Home Page