Joint Committee on the Draft Mental Incapacity Bill Written Evidence

90.Memorandum from Mr Richard S Webb (MIB 138)


  1.1  For some six years, until our Mother died in 1974, my sister Elizabeth and I held Power of Attorney for Mother and Father. This worked very well—including the selling of securities to buy an annuity and all medical and welfare matters.

  1.2  My sister Mary gave Power of Attorney to her three children. This worked well in every possible way. My sister Ruth has given Enduring Power of Attorney to the same three but no action has yet been needed.

  1.3  My sister Elizabeth, who now suffers from Alzheimer's disease, has given EPA to her son Max. She is now incapable. A muddle with the solicitor left him on his own instead of including his wife Anna to work "jointly and severally". Max has (as I write) entered hospital with Angina for observation and possible surgery.

  1.4  A friendly neighbour has had excellent experience as Attorney in an E.P.A. for an old lady with no near relatives.

  1.5  My wife and I have both made EPA in favour of each other and our two children "jointly and severally". We are aged 77 and 80.


  2.1  Those who have drafted this Bill have viewed the matter from all possible angles—a mammoth task. As far as I can tell most circumstances have been covered.

  2.2  I have not been able to work out how the donor would continue to be supported if only a single donee is appointed in a Lasting Power of Attorney and he or she are unable to act for any reason. This may become a problem with my sister Elizabeth as I write. I have identified many Clauses and Sections that relate to this but I am not clear who would initiate action with the Public Guardian and/or the Court of Protection. Please make it clear for a layman like me as to what to do. It is probably clear already to those who drafted the Bill, (see this memorandum section 2.9).

  2.3  In the same way if someone becomes mentally incapable with no LPA how could concerned family, friends or professional group recover the position and establish and register a LPA?

  2.4  There should be no absolute assumption that a spouse should at once take charge of care arrangements for their partner. They may be about to have an acrimonious divorce. Medical and social workers should at least initially use their own judgement. Perhaps Clause 4 (1) and (3) (b) helps.

  2.5  Checks and controls are well set out. However good will, patience, competence, time and available finances will always be necessary for donees and deputies. It seems important that no Agency is allowed to interfere with the activities of a donee or deputy unless they are very sure of their ground. I am aware that some terrible child abuse cases have been revealed too late to help the child—but parents have their children on their hands whether they like it or not. Carers, donees and deputies for a person lacking capability are effectively volunteers and heavy handed control would become known and make potential donors less inclined to impose on relatives and friends and also relatives and friends less inclined to become involved. A balance of benefit should be found. Clause 31 or notes of guidance should have a reference as to whom an initial complaint be made.

  2.6  Clause 13, and others, appear to help to avoid technical breaches of the Bill (or Act) when committed in good faith to help the donor.

  2.7  I trust that an interpretation of Clause 25(5) would not prevent my donee from ensuring that I have sufficient pain relief should it be necessary even if the side effect is terminal. Particularly I do not want to die of asphyxiation.

  2.8  Under Schedule 1, Part 1, Clausel(l)(a), where will the necessary form be available? Please state.

  2.9  The Bill, Schedules and Explanatory Notes are fine. Please will someone prepare and make available a simple introductory statement, like the enclosed copy of the first sheet of an Enduring Power of Attorney, as an introduction for anyone thinking of executing a Lasting Power of Attorney and a potential donee or deputy. There should also be prepared a summary of how a LPA may be prepared, registered and used giving examples of financial and property deals, general affairs, administration, medical and welfare matters over which the donee or deputy may have control—both before and after the donor `P' becomes mentally incapable. Note Annex A, Option 4, Clause 14. This document could be the equivalent of the Highway Code which states on the back cover that it is not a substitute for the Road Traffic Act, 1988 or other legislation but "—as tending to establish or negative any liability which is in question—".

  2.10  As more than one copy of a LPA will be needed please state how Certified Copies may be obtained. I hold 6 copies of my EPA.

  2.11  Annex A is very interesting and makes a clear case for introducing LPA's. But do not under estimate the value of EPA's in the meanwhile if properly and tactfully used.

  2.12  Costs may be a barrier for some people either for financial reasons, in which case the DSS or Charities might help—as is done now to encourage people to make Wills—or prejudice.

  2.13  In time I hope that under Clause 3 of Schedule 1 it will become acceptable for a donee to be called an attorney—a far more dignified and explicit name.


  3.1  The Draft Mental Incapacity Bill is well thought out and should be enacted by Parliament with the minimum of delay. If some or all my comments could be dealt with, say, in a Highway Code type document this would be excellent.

  3.2  To hold a LPA seems to be almost as important as a Will—an insurance policy. There will have to be a Awareness Campaign since pathetically few people hold EPA'S. at present. Government, the DSS, Social Services and Charities could work together. Individuals could be given simple sheets, like the front of the E.P.A., to pass to friends and relations. Inertia needs to be overcome.

August 2003

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