Joint Committee on the Draft Mental Incapacity
There are three points the Law Society would like
to make, all of which concern financial matters. The first two
are about missed opportunities, while the third point identifies
unnecessary bureaucracy created by the Bill.
1. The objective of this Bill is to introduce new
mechanisms to allow certain decisions to be made. However the
opportunity to consolidate the law relating to Powers of Attorney
has been missed. Currently as proposed under the Bill there will
be four principal types:
A pre-existing Enduring Power of Attorney under the
Lasting Power of Attorney under the new Act
Ordinary Power of Attorney under the 1971 Act
Trustee Power of Attorney under the 1971 Act (valid
only for 12 months).
The Law Society recommends that the 1971 Act is repealed
and the powers described above dealt with under the new Act, within
the instrument which also vests Lasting Powers of Attorney.
The Law Commission in its report (No 231) highlighted
its concerns about the appointeeship process - the process whereby
a substitute is appointed by the Secretary of State to receive
social security benefits on behalf of an incapacitated adult.
Problems with this process were also raised by the Parliamentary
Ombudsman in her report of 8th July 2003.
The Law Society considers that that the absence of
any adequate appeal provisions for individuals subject to appointeeship
is unsatisfactory. Presently an individual who wishes to challenge
the appointment can merely request that the Secretary of State
discretion to revoke the order. In our view this
is contrary to natural justice and infringes the individual's
human rights under Article 6(1). We would suggest that an alternative
remedy would be to enable the individual under this Act to have
a right of access to an Appeals Tribunal.
Under Schedule 4, Receivers appointed by the Court
of Protection prior to implementation of the Act will be accountable
to the Public Trustee. The Public Trustee is then accountable
as a deputy to the Public Guardian. The Law Society is not convinced
that this additional layer of bureaucracy will enhance any purported
protection; it is more likely however, that it will cause unnecessary
For more information please contact:
Jenny McCabe, Policy Adviser Mental Health
Tel: 020 7320 5695