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Lord Carlile of Berriew: My Lords, I should like to speak in support of both prayers. I agree with every word that was said by the noble Baroness, Lady Greengross. I also agree with the call from the noble Lord, Lord Kingsland, that there should be the best possible management practices within the Public Guardianship Office.
I went to my family solicitor a few years ago to make a new will. While I was instructing him on how to prepare the will, he asked me if I was minded to prepare an enduring power of attorney. I was a little offended at first blush, as I was then in what would politely be described as the "very early fifties". He explained to me that, these days, it was part of the everyday kit for solicitors advising clients of whatever age on the making of wills. The reason for that is obvious: people live much longer. Many people survive well into their late 80s and, for a large number, into their 90s. If they create an enduring power of attorney, they have a useful and practical opportunity to ensure that the people whom they choosepeople whom they trustwill manage their affairs in the event of serious incapacity.
The result of having an increasingly ageing population is that the number of enduring powers of attorney is increasing fast, particularly as solicitors give the sort of responsible advice that was given to me. In almost every instance, enduring powers of attorney work well. As it happens, my wife exercised an enduring power of attorney over an elderly aunt who had become mentally incapacitated. As a result of hard work under the power of attorney, my wife was able to ensure that her aunt's assets were maintained and that her aunt had the highest possible quality of life consistent with her incapacitating condition. That fulfilled the aspirations of the aunt before she became incapacitated.
Registration of enduring powers of attorney is not compulsory. I have no idea what proportion of EPAs is not registered; I suspect that it is a large majority. One of the reasons why they have not been registered is that people have been put off even by the previous fee that was charged. Registration is important. It gives a degree of protection against fraud, and the discipline of registration itselfthe knowledge that an enduring power of attorney has been registeredwill discourage any temptation of fraud. Registration is in the public interest. As I understand it, government policy is that registration should take place in as many cases as possible. I should welcome confirmation of that.
I should not complain for one moment if the registration fee were increased by a sum that reflected the cost of living or even if the fee took into account something that was demonstrable and specific, such as an increase in the cost of processing the forms. The
registration of EPAs is a modest administrative exercise; it cannot cost more than a few pounds. The increase from £75 to £220 for registrationa staggering increase of 300 per centcannot possibly reflect an increase in costs. I should be grateful if the Minister could confirm that. It looks awfully like a punitive form of tax collection, in which enduring powers of attorney are an easy target.Whether it is right or wrong and even if the Government can demonstrate that an increase is necessary to meet the costs of the registration and administration of powers of attorney, the matter must be subject to an element of public interest consideration, for the reasons given earlier. An increase to £220a significant cost for people making wills that certainly exceeds the cost of many wills by some distancewill discourage people from securing the power of attorney for when they become vulnerable. It must be in the public interest to ensure early registration, so that the person who creates the power of attorney has a hand in the process. He or she will want to know that it has been registered, so that there is full protection. The increase in the fee for registering powers of attorney will discourage that.
It would be more convincing if the Government had said anything that demonstrated an improvement in the monitoring arrangements for powers of attorney. We return to the point made by the noble Lord, Lord Kingsland. We have not been told a single thing about any improvement in monitoring arrangements. It would be helpful to know how many extra staff will be employed in monitoring powers of attorney. How many more investigations will there be into the use of the powers?
It is also surprising that there was so little consultation, prior to the increase, with those who might have had something constructive to offer, such as the Law Society, whose members are involved in the great majority of cases involving enduring powers of attorney, the major charities and other professional groups. I hope that I will be corrected about this, but I understand that there was limited consultation even with the Public Guardianship Office's consultative forum, which was set up for the specific purpose of being consulted on such issues.
My other point relates to receivership. Under the previous arrangements, there was a standard fee of £1,750 per annum for the administration of receiverships. One of the reforms that flowed from the quinquennial review of the PGO was the use of external receivers. Those receivers are drawn from a panel of professional receivers who are mostlynot exclusivelysolicitors. Some of the receiverships cost less than £1,750; some cost a great deal more. The flat-fee arrangement has compensated for the existence of dearer and cheaper receiverships. That is a fair, rounded system.
The PGO no longer charges fees, but it has retained some receiverships of last resort. It was always recognised that there would be a residual number of cases200 or 300in which the Public Guardianship Office would act as the receiver of last resort. They
might include, for example, cases of fraud by a family member or in which the patient is particularly violent or demanding. Under the new arrangements, that service is provided free of charge by the PGO, subsidised wholly by the taxpayer. However, a choice must be made by the PGO as to whether it is a receivership of last resort or one that will be put out to a member of the panel. There will be many marginal cases. What will be the effect in those marginal cases?Cases that fall on the non-residual side of the line must pay the full charges of the professionals who are involved in the receivership. In some cases, that could run to several thousand pounds a year. Those in the residual category will not have to pay. That creates a serious problem for the Public Guardianship Office. How can it justify the appointment of a panel receiver as being for the benefit of a patient when the panel receiver will charge several thousand pounds, even though the in-house provision is entirely free? How can the Master of the Court of Protection give a serious and reasonable answer to a member of the public who has in his hands the interests of a patient and says, "I want this to be a residual case because I won't have to pay for it"? The cost of a panel receiver will be prohibitive.
That puts the Court of Protection in a difficult situation and makes something of a mockery of the PGO's panel receiver system. I do not believe that that point has been fully considered. If it has, I should welcome the Government's response to why they have allowed such an anomalous situation to arise.
The regulations have been introduced in haste and without proper consultation. It would be better if they were withdrawn, so that consultation could take place in the normal way. That way, we could return to the matter in due course with more balanced regulations.
Baroness Scotland of Asthal: My Lords, first, I thank the noble Baroness, Lady Greengross, for raising this issue. A number of noble Lords have raised many important questions. The noble Baroness was right to say that the Public Guardianship Office plays a crucial role in the lives of some of the most vulnerable people in societypeople who suffer from mental incapacity. Its clients include people who suffer from mental illness, people who have learning disabilities, people who have suffered brain damage and elderly people who suffer the effects of dementia.
These are people who are easily forgotten or sidelined. They need champions. For many years, the noble Baroness, Lady Greengross, has been their champion through her work with Age Concern and other organisations. Perhaps I may say also that the noble Lord, Lord Kingsland, and the noble Lord, Lord Carlile of Berriew, have both demonstrated that they too share concerns about these vulnerable people in our society. I take the remarks made by all noble Lords very much in the spirit that they were meant and I shall respond as fully as I can. I appreciate the concerns that these rules have given rise to, and I shall try to answer as many of the points as I can before the
close of today's debate. However, if I do not respond to all of them, I hope that noble Lords will write to me. I shall then seek to give a fuller response.The noble Baroness, Lady Greengross, asked for an explanation of how the fees arose. I am happy to give that explanation, which I hope will also be to the elucidation of the noble Lord, Lord Carlile. Before doing so, however, I think that it is important to explain the principle that we followed in setting the new fees.
We wanted to ensure that we act in line with the findings of the Public Accounts Committee in its 1999 inquiry into the affairs of the Public Trust Office which, as noble Lords will recall, was the predecessor body of the Public Guardianship Office. The PAC was very critical of the way in which the costs of services to some clients were being cross-subsidised through higher fees being charged to other clients.
It has been the policy of successive governments that people should pay for the services they use and that those who cannot afford to pay should be subsidised. Taking this important principle together with the criticisms of the PAC, we have devised these new rules to reflect more accurately the cost of services used by clients and to support the provision of better services to them, based on a system which is fairer to all.
The new fees fulfil those aims. They ensure that the fees reflect the costs. They eliminate cross-subsidy between groups of clients and they will allow the PGO to develop and improve its services. Most important, they contain improved protections, support and better value for poorer clients.
Quite naturally, noble Lords have focused on where the fees have increased. I should like to respond to those concerns but, first, I wish to place on the record that we have reduced some fees. For protection cases, the commencement fee, which covers the cost of processing a first application to the court, has been reduced from £230 to £65. In Court of Protection cases, where clients have net assets below £16,000, their representative can be given authority to manage a client's finances under a "short order", and will have to pay only the £65 fee. That is one example of the way in which the new fees will help the poorest clients of the PGO. Previously they would have paid £230, the same amount as for more complex applications. That higher fee partly subsidised users of other PGO services, in particular enduring power of attorney clients, to whom I shall turn later in my remarks.
Officers of the Court of Protection and the PGO have also developed new guidelines for remission of fees which are both more generous and wide-ranging in their scope and which will be more widely publicised than in the past. They have consulted the main stakeholders, bodies such as Age Concern, the Alzheimer's Disease Society, Action on Elder Abuse, MIND and the Law Society. The new remissions scheme reflects their views. For example, the guidelines increase the capital limit for remission of all fees from £3,000 to £11,750, an increase of almost 300 per cent.
There are two other important aspects of the remissions scheme to which I should like to draw the attention of noble Lords. First, the increase in enduring power of attorney registration fees has caused concern, a point mentioned by the noble Lord, Lord Carlile. Under the revised remissions guidelines, clients with assets of less than £16,000 will be treated in the same way as "short order" protection clients. They will pay a registration fee of only £65; that is another illustration of how the fees policy will protect the PGO's poorest clients.
I should like to remind noble Lords what the full fee for registration of an enduring power of attorney covers because, as the noble Lord, Lord Carlile, demonstrated in his speech, there does not seem to be much clarity on that point. The fee of £220 covers the cost of registration, handling any disputes or technical problems and correspondence during or after registration, helping and advising attorneys or their legal representatives, investigating allegations of financial abuse against the donor and cancelling registration on the death of the donor. The registration fee covers that work over the lifetime of the case. It is not for a simple act of registration of a document, as perhaps the noble Lord, Lord Carlile, thought or suggested. I hope that noble Lords will agree that a fee of £220 over such a period represents incredibly good value.
Finally, the Public Guardianship Office will publicise its remissions guidelines and will incorporate them in a review process if a client believes that the PGO has failed to apply the scheme properly. I hope that that will be of reassurance to the noble Baroness. The PGO will retain the discretion to remit fees for clients who do not meet the set criteria if it judges that they would suffer hardship as a result of having to pay fees.
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