115.Memorandum from Solicitors for the
Elderly (MIB 930)
1. Solicitors for the Elderly (SFE) is a
national organisation led by solicitors who are committed to providing
and promoting a comprehensive range of high quality legal services
for older people, their family and carers. We have in excess of
400 members. SFE welcomes, in principle, legislation in the area
of mental incapacity. Such legislation would provide legal clarity
generally in the area of decision making on behalf of adults (often
the elderly) who lack capacity, empower those who have limited
capacity to decide as much as they can for themselves, protect
the vulnerable from abuse, encourage clients to consider seriously
whom they wish to take decisions on their behalf in the event
of incapacity and restructure the Court system both in relation
to the Court of Protection and the new Public Guardian which is
hoped will solve some of the existing problems which SFE's members,
as practitioners working with the present Court of Protection
and PGO, encounter on a day-to-day basis.
The comments on the draft Bill follow the order
of the clauses of the Bill itself and have been drawn from information
provided by SFE's members.
The following issues will need further consideration:
2.1 Under clause 1(1) a person can be treated
as lacking mental capacity if he is unable to make a decision
for himself because of "impairment of or a disturbance in
the functioning of the mind or brain". It is unclear how
wide this definition is intended to be. Could it, for example,
encompass the possibly temporary effect of drugs or alcohol? More
importantly, to what extent does this definition of capacity take
precedence over, dispense with or otherwise revoke the existing
common law tests for various types of legal capacity; testamentary
capacity, capacity to make gifts, capacity to instruct solicitors
in litigation/other matters, make an EPA etc? Is there intended
to be one over-riding statutory test for these matters or will
the common law tests be used together with the statutory test?
If the latter is to be the case, it appears that a common law
test could have an additional element added. For example, the
Banks v Goodfellow test for testamentary capacity
does not require the testator to have considered the reasonably
foreseeable consequences of either deciding or failing to decide
which clause 2(5) of the Bill does require. Under Banks v
Goodfellow, the testator does not need to understand what
would happen should they decide not to make a Will and consequently
the effect of the intestacy rules on their estate, but the Bill
would require this.
2.2 Under clause (2)(1)(d), a person will
be treated as unable to make a decision if he cannot communicate
the decision. Various examples of how that decision could be communicated
are given in the notes. What is intended to be the position however
in relation to a person who cannot communicate as a result of
physical paralysis which cannot be demonstrated to be referable
to an impairment or disturbance in the functioning of the brain?
That person would fulfil only part of the clause 1(1) definitionhe
would be unable to make a decision for himself because he could
not communicate that decisionbut it would be unclear that
he would be unable to decide as a result of the impairment of
or disturbance in functioning etc.
2.3 Under clause 2(3) a person will not
be treated as unable to make a decision unless all practicable
steps to help him do so have been taken without success. Clause
22 of the Commentary gives examples of the steps which could be
taken to help somebody make their own decision and mentions that
this is an area which the Code of Practice will cover. It would,
however, be sensible for the word "reasonable" to be
inserted between "all" and "practicable".
"Practicable" could obviously be construed as encompassing
the concept of reasonableness but it would be more sensible to
make this clear and would assist those trying to assess the lengths
to which someone should go to achieve communication.
2.4 Clause 2(4) indicates that the fact
a person is able to retain the information relevant to a decision
for a short period only does not prevent him from being regarded
as being able to make that decision. There is a concern that this
does not provide protection in particular to a client with dementia
who may, for example, recall they need to pay a bill but once
paid, forget within a short period of time that it has been paid
and so pay again. This is an area in which, again, the Code of
Practice could give guidance.
2.5 Clause 3presumption against lack
of capacity. Although clause (3)(1) restates the existing common
law presumption of capacity, the wording "unless it is established
that he lacks capacity" is unclear. To whose satisfaction
should this be established?
3. BEST INTERESTS
The "best interests" test in clause
4 is effectively a codification of well established common law
principles which are now related to making decisions for incapacitated
adults. Although SFE welcomes the statutory requirement to act
in an incapacitated person's best interests as a useful focus
of the mind of whoever is seeking to make a decision for an incapacitated
person, there are a number of issues which require further consideration
3.1 The listed factors to be taken into
consideration when determining best interests are not as wide
as those contained in previous recommendations. The legislation
in Scotland, for example, has a concept of "general principles"
intended to cover the same ground which could be argued to be
3.2 It is unclear how the "best interests"
test is intended to applied when the matter under consideration
is the making of a Will, Settlement or a gift in favour of a third
party. This type of action could only rarely be said to be directly
in the best interests of the incapable person if it results in
immediate financial reduction even if the plan is for a saving
of tax later on. Under the Mental Health Act 1983, the test applied
by the Court of Protection is whether the patient would make the
gift/settlement if they were of full capacity and properly advised
(cf Re D (J) in respect of Wills). Obviously the Court would never
make a gift or settlement which would be detrimental to the patient
but that is very different from saying that making it must be
in the best interests of the person who lacked capacity.
3.3 It is also unclear whether the "best
interests" test is intended to be subjective (ie what the
incapable person in question would consider to be in his best
interests) or objective (ie what a reasonable person in the position
of the incapable person would conclude to be in his best interests).
Logically, the test should be a subjective one to follow the existing
case law in relation to financial decision making by the Court
of Protection but this needs to be clarified.
4. GENERAL AUTHORITY
(CLAUSES 6 & 7)
4.1 Although SFE welcomes the statutory
General Authority (GA) as a practical solution to the need for
day to day authority for decision making, the welcome is a cautious
one. It has been reported on a number of occasions that financial
abuse under the existing EPA arrangements is probably happening
in some 20% of cases and the proportion may be much higher, bearing
in mind the large number of EPAs which are not registered. Where
there is no EPA or receivership order, presently no individual
has the power to act for another and it is impossible to assess
what level of financial abuse is already ongoing as where there
are no formalities there is no way of monitoring the prevalence
of abuse. The GA is intended to apply in hospitals, care homes,
day centres, private homes and any other public place or setting
where services are provided but there is little in the Bill to
provide safeguards against the kind of abuse which, even anecdotely,
it is clear is going on now.
4.2 Clause 6 authorises a person to carry
out an act when providing "any form of care". The word
"care" itself is not defined and could be a very widely
drawn concept. To take an extreme example, a carer providing meal
making services for an incapable person might decide that an incapable
person's kitchen is not suitable to provide the kind of meals
which they believe it is in the best interests of the incapable
person to receive and incur expenditure (see 4.4 below) on behalf
of the incapable person in purchasing a new cooker, microwave,
dishwasher and other expensive kitchen equipment. They would do
this believing they were acting in the best interests of the incapacitated
person but where is the line to be drawn?
4.3 To use a GA, there is no need for a
Court to have selected the decision maker and set parameters for
decision making. Neither have these issues been determined by
the incapable person themselves as would be the case under an
EPA or LPA. In a GA situation, the decision maker would be empowered
to make decisions until such time as they are challenged and so
it is doubly important that safeguards and parameters are set
in an identifiable way.
4.4 It is of concern that under clause 6(2)
a person acting under a GA could carry out an act involving expenditure
and as part of this, pledge the incapacitated person's credit
for the purposes of the expenditure and apply money belonging
to the incapacitated person to meet it. It is doubtful in any
case that any financial institution would act on the basis of
a GA to enable a person to operate a bank account or raise money
on the security of an incapacitated person's property; our members
already experience difficulty regularly in arranging for banks
etc to accept EPAs. There is also no requirement that the person
able to exercise these financial powers under a GA is themselves
financially prudent. At present, an attorney under an EPA or a
receiver cannot be a bankrupt but there is no such limitation
on someone acting under a GA.
4.5 It appears under clauses 6(4) and 7(2)
that although the GA does not authorise a person to do an act
which conflicts with a decision made either by a donee of an LPA
or a deputy, a person will be able to exercise a GA notwithstanding
that another person actually holds an LPA or is a deputy providing
that those persons have not made an actual decision. This seems
likely to cause significant confusion. Surely where a person with
capacity has appointed an attorney to make a decision for him
or the Court has appointed a deputy, no other person should be
permitted to act under the GA without having first taken all reasonable
steps to contact the attorney or deputy and discuss and clear
the decision proposed to be made with them?
4.6 The position of third party providing
goods or services requested under a GA is not clear. They may
have no knowledge of the appointment of an attorney or a deputy
or any contrary decision made by them.
5. LASTING POWERS
(CLAUSES 8-13 INCLUSIVE)
5.1 SFE members are well aware of the existing
problems that surround EPAs as they regularly draft them, advise
on them, and consider the capacity of their clients to make them.
One of our members has commented "EPAs are not understood
well by the general public and the fact that you can buy them
in a bookstore . . . I believe is very misleading . . . The fact
that they can be completed by anyone and then used is very worrying.
From my experience they complete these forms when persons are
already mentally incapable and then unfortunately we all know
the results". SFE members have therefore raised a number
of points concerning LPAs.
A donor under an LPA will be able to grant a
wider range of powers to their attorney than under an EPA. An
attorney can be granted power over personal welfare and property
and affairs. SFE welcomes this development but with caution. It
may be appropriate for the "financial" attorney to make
welfare decisions or the LPA may need to be restricted or more
than one prepared dealing with separate issues. This has cost
implications for clients as each new LPA will need to be registered
and have a capacity certificateeach with attendant cost.
5.3 FORM OF
A number of our members have commented on the
difficulties with the current prescribed form of EPA. Obviously
the new form of LPA will be specified by regulation (not yet available)
however it is anticipated that there will be prescribed information
in the same broad form as the current EPA. One of our members
has commented in relation to the current form that "the wording
on the front of the current documents is also quite difficult
to explain to clients, especially number 7 which states "become
or are becoming"what does this really mean to the
general public?" and another suggests that Plain English
is used which it is felt would reduce abuse as donors would be
clearer as to the effect of the power. Schedule 1 Part 1 paragraph
2 specifies matters to be covered in the prescribed form. SFE
would welcome consultation on it when a draft is available.
Although Schedule 1 Part 1 paragraph 2(c) provides
that the donor may state in the instrument there are no persons
whom he wishes to be notified of any such application, our members
have concerns about this. It is accepted that there are those
donors who have no relations or close friends to notify however
our members regularly encounter situations which, for example,
one of three children is appointed as attorney and the other two
do not find out about it until registration is applied for under
the current EPA system. Children not appointed (sometimes correctly,
sometimes not) feel disgruntled about this and it would be sensible
for there to remain a requirement for notification of, perhaps,
near blood relations. Such notification obviously will now take
place at the point of registration whilst the donor still retains
capacity so that they can explain their selection of attorneys.
Clause 9(1) provides that a donee can only be
as trust corporation where the power relates to property and affairs.
In practice if the trust corporation were managing a donor's finances
they might need to be involved in welfare decisions (although
not giving or refusing consent to medical treatment). This would
mean that they would have to rely on applying to the Court for
appropriate authority or somebody exercising a general power.
This would by its nature incur additional expense and delay.
An instrument will not be a valid LPA until
it has been registered and therefore the present system of acting
under an unregistered EPA will no longer exist. One of our members
has expressed concern that registration on creation could be "ridiculously
bureaucratic, frustrating and time consuming etc" and others
have commented that EPAs are currently used frequently for those
quite capable but who simply need a document to assist them with
a house move, cover their finances in relation to a holiday or
a gap year for a student. SFE is concerned that the requirement
for immediate registration, with its cost, will deter people from
making LPAs which must be a bad thing, considering the issues
of abuse. One of our members commented "I would regret anything
that encouraged clients to postpone putting their affairs in order.
An active LPA regime, where people are encouraged to create LPAs,
would presumably reduce the amount of . . . receiverships, so
it is in everyone's interests to ensure LPAs are an attractive
The same comment could be made about the requirement
in Schedule 1 Part 1 paragraph 2(e) concerning the requirement
for a certificate signed by a person of prescribed description
as to the capacity of the donor. Additionally it is by no means
clear whom a prescribed person should be and this seems to be
an area in which much more guidance is required. There has been
judicial comment in at least one recent testamentary capacity
case to the effect that the evidence of a solicitor as to the
capacity of testator is as useful as that of a doctor even though
it is accepted that the solicitor is not medically trained. That
having been said, solicitors do not have specific training in
the assessment of capacity and there would be concern as to what
training would be necessary for a solicitor to be sufficiently
qualified to assess a client and give such certificate.
The costs of giving such a certificate are obviously
a consideration as well. Added to the registration fee, they could
represent a significant outlay on behalf of the client in making
5.7 ONE LPA OR
It has in the past been common for more than
one EPA to be made although it has never been completely clear
whether a later EPA was to revoke an earlier one. This matter
is also not clear as far as LPAs are concerned. The bills should
clarify whether more than one LPA with the same scope can exist
at the same time. If it does, will the Public Guardian register
both? What will the PG's view be if there was in existence one
LPA covering both welfare and financial matters and one covering
only welfare matters?
Clause 9(8) does not permit the donee of an
LPA to appoint a substitute or successor but can appoint a person
to replace the donee on the occurrence of death, bankruptcy or
disclaimer of the donee or divorce of donor or donee. The Act
does not, however confirm specifically that this is the only substitute
decision making power permitted under an LPA and that an attorney
cannot otherwise delegate his or her decision making power. It
is accepted that the restriction on delegation is a general provision
of existing agency law but if a detailed statutory framework for
LPA is available, this should be made clear.
Clause 12(5) does not provide power for the
Court to remove a donee and revoke the power. The Court is given
this power in clause 21 (4) but only where the donor has lost
capacity. It might be difficult to think of occasions in which
the Court might require the power to revoke an LPA and remove
a donee where the donor does retain capacity however such occasions
might arise, for example, the donor retains capacity but is being
unduly influenced by the donee.
Clause 12 should make specific provision as
to how an LPA is to be revokedshould writing be required?
What is the position after revocation but before registration
has been cancelled? Provision is also required as to notifying
a Public Guardian and amending the Register. Finally, perhaps
the appointment of a deputy with either the same or overlapping
scope should revoke the appointment of an attorney under an LPA
unless specially provided to the contrary in the appointment.
5.10 LPAS AND
Although the "best interests" test
is not specifically referred to in clause 11, clause 4(1) says
that all decisions made under the Act are subject to the test.
Clause 11 clearly seeks to deal with some of the issues which
have arisen under Section 3(4) EPAA 1985 but some other issues
still arise. It is not clear if clause 11 can be used to permit
an attorney under an LPA to maintain himself or a third party
who could reasonably expect to be maintained by the incapacitated
donor. This could encompass a spouse, minor child, dependent co-habitee
or even an adult child who having been independent subsequently
became incapable of supporting himself or herself. On the basis
of the limited scope of clause 11, it is likely that more applications
for single orders will be made to the Court of Protection not
14 & 15, 34-37)
6.1 It is not entirely clear from clause
37(1) exactly what powers of the High Court the Court of Protection
will have. The reference to High Court powers is not specific
enough and the powers which the Court of Protection requires should
6.2 The Court itself will, in any case,
need to have special resources to train judges. Although nobody
below the level of District Judge can apply to be a Judge of the
Court of Protection, the unusual jurisdiction and procedures of
the Court means that there will be few existing district judges
who have the skills to become Court of Protection Judges and special
training will be required.
7. DEPUTIES (CLAUSES
7.1 While it is welcomed that the individual
be able to continue to have appropriate control over their affairs,
limiting the scope and duration of the authority of a deputy in
clause 16(4)(b) in practice will almost certainly cause confusion
with financial organisations as to when and who can sign financial
papers. There could be some provision for a general authority
on similar terms as an LPA when dealing with finances and affairs
which is for a fixed period but renewable. Additionally, the more
times the deputies return for a court authority the more the delay
and expense. Although it is understood that the decision of the
Court is to be preferred to the appointment of a deputy to avoid
the need to interfere more than required in decisions, there are
cases where a person's decision making powers vary considerably
on a week by week basis, particularly if they are suffering from
illnesses which recur from time to time or which are managed through
drugs or which have a seasonal nature. In such cases, the appointment
of a deputy should be preferred to provide consistency. Similarly,
in the case of progressive dementias of the elderly, where a particular
point has been passed, it is unlikely that the incapable person
will ever be in a position to make any decision other than a very
7.2 It is noted that under clause 19(9)
a deputy may be required to submit to the Public Guardian such
reports at such times and at such intervals as the Court may direct
but there is no automatic requirement for the submission of accounts.
SFE would strongly urge that deputies should be required to submit
accounts on an annual basis to the Court or the Public Guardian
or a nominated person unless that requirement is expressly dispensed
with. Holders of financial LPAs should be subject to having to
submit accounts if requested and the Public Guardian should select
some attorneys each year and require accounts from them. This
would encourage high financial standards and discourage abuse.
7.3 Clause 20(3) does not exclude the deputy
having a power to make gifts. It is unclear whether a deputy is
intended to be given these powers.
7.4 The width of clause 20(4) is concerning.
Although it is unlikely that a deputy would be appointed when
a LPA already exists with the same or similar scope without that
LPA being revoked by the Court, a decision might have been made
by an attorney under that LPA which a deputy might then wish to
change which Clause 20(4) does not permit.
7.5 Clause 19(1) does not allow for a trust
corporation deputy to be able to make any welfare decisions, in
particular where someone should live. This would mean that they
would have to rely on an application to the Court for the appropriate
authority which would by its nature incur expense and delay. It
may be of benefit for a trust corporation to have the power to
make welfare decisions but it would not seem appropriate for this
to extend to giving or refusing consent to medical treatment.
8. ADVANCE DECISION
(CLAUSES 23-25 & 32)
8.1 Clauses 23 to 25 basically codify the
present common law position concerning the right of a competent
adult to refuse treatment, both at the time when that adult has
capacity and at some future time when capacity may have been lost.
Cases such as Re C (1993) and Re T (1992) confirm the right to
make such a refusal and specify the mental capacity required to
make such a refusal and conditions precedent for one to be valid.
Various points arise, however, from the provisions
of the draft bill.
8.2 The only formalities specified in clause
23 for what is described as "the decision" are that
it has to be made by a person aged 18 with the necessary capacity.
There appears to be no requirement for the decision to be expressed
in writing and no formalities specified for any such writing.
This indicates that advance decisions could be made orally however
there are no specific formalities for such an oral decision. Some
US States allow for oral advance directives but, considering the
potentially informal nature of the making of a directive in this
way, specify particular formalities as a safeguard.
8.3 Clause 23(1) refers to the necessary
capacity to make an advance decision and the lack of capacity
to consent to the carrying out of a continuation of such treatment.
On the basis that the definition of persons who lack capacity
in clause 1(1) is expressed to apply for the purposes of the Act,
it is assumed that both the capacity to make an advance decision
and the lack of such capacity to give consent to treatment are
now both to be assessed in accordance with clause 1(1) rather
than in accordance with previous case law tests (eg Re C).
8.4 An advance decision will only be effective
if it is both valid and applicable (clause 24). An advance decision
will not be applicable if circumstances exist which were not anticipated
by the maker of the decision at the time when it was made and
which would have affected his decision had he anticipated them.
This can potentially make advance decisions difficult to operate
in an area of medical practice which is rapidly changing. For
example, many new treatments for Alzheimer's has been discussed
and tested in recent years. A person with dementia seeking to
make an advance decision may well have to be advised that the
developments in medical practice are such that an advance decision
may not be found to be applicable at the time when capacity has
8.5 Clause 24(5) indicates that advance
decisions may be used to refuse life sustaining treatment. Although
this term is not defined, it seems likely that it would cover
the same ground as the definition of "basic care" used
by the Law Commission in Report 231 (1995) and other subsequent
reports. All the reports agreed that to allow a refusal of basic
care would make caring for an incapacitated person extremely difficult
for their medical advisers and therefore there ought to be a limitation
on advance decisions that this kind of care (such as keeping the
patient warm, clean and controlling distressing systems) should
not be able to be refused. This has now been changed in the bill
but it is not clear why.
9. ILL TREATMENT
9.1 SFE welcomes a new offence of neglecting
or ill treating a person who lacks capacity. This is however a
criminal offence and will be subject to the criminal standard
of proof of beyond reasonable doubt and it is unclear how the
new offence will fit with powers of the Court of Protection and
the Public Guardian. Clause 39 gives the Court of Protection powers
to call for reports when considering issues in proceedings. The
reports are to be made by Public Guardian or the Lord Chancellor's
Visitors. It does not seem from clause 48 that the Public Guardian
has a duty to investigate or alert the Court in cases of suspected
abuse. The Public Guardian's functions are limited to supervising
donees of LPA and deputies, directing Lord Chancellor's Visitors
to visit and report and dealing with complaints about the way
in which a donee of a LPA or a deputy has exercised their power.
9.2 In general, it would be more understandable
if all the protection and safeguard provisions of the bill were
grouped together. At present, they appear in a number of different
sections relating to the different types of decision maker and
are therefore hard to assess as a group.