Joint Committee on the Draft Mental Incapacity Bill Memoranda

Joint Committee on the Draft Mental Incapacity Bill

Supplementary Evidence

October 2003

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 1985 Act

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The Law Society recommends that the 1971 Act is repealed and the powers described above dealt with under the new Act, within the instrument which also vests Lasting Powers of Attorney.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 exercise their

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 delays.

For more information please contact:

Jenny McCabe, Policy Adviser Mental Health


Tel: 020 7320 5695

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