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Baroness Barker: The response of the noble Baroness was extremely helpful and it is important to have those points on the record. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 190 and 191 not moved.]
Clause 56 [Functions of the Public Guardian]:
Earl Howe moved Amendment No. 192:
The noble Earl said: In moving Amendment No. 192, I shall speak also to Amendments Nos. 193 and 196. These amendments would add to the proposed safeguards in relation to lasting powers of attorney. Amendment No. 193 proposes that the Office of the Public Guardian should keep a separate record of those LPAs that are in use. That would include both those that are in use prior to the person losing capacity and those that are used once the person has lost capacity. If the information on the LPA instrument is kept up to date, which I know the Government are committed to bringing about, it will enable the Office of the Public Guardian to target those LPAs that should be monitored.
In some cases, the Office of the Public Guardian might well find that the person has regained capacity, and that would be part of the updating process. The Joint Committee that scrutinised the draft Bill recommended that there should be,
"an additional safeguard mechanism by which the Court of Protection or the Public Guardian could monitor the use of LPAs with a view to preventing the abuse and exploitation of a donee's powers".
The amendments offer some suggestions as to the way in which the Office of the Public Guardian could undertake additional monitoring. If attorneys were aware that there was random monitoring, that would certainly help to prevent abuse. Currently, I understand that the Office of the Public Guardian is developing a risk assessment method of deciding on the level of monitoring of receivership cases. It would be worth considering whether a similar system could be developed in relation to LPAs. For instance, those LPAs where no one is named to be informed of registration or where the only person named was a close relative of the donee could trigger such a risk assessment.
The Bill also currently lacks any form of check by the Office of the Public Guardian regarding whether a person is suitable to be a donee. Amendment No. 196 imposes a duty on the Office of the Public Guardian to undertake checks in relation to bankruptcy and whether the person is listed on the protection of vulnerable adults list. I am aware that we have covered these issues in other amendments, but the point remains important. I hope that the Minister will not
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give me an entirely disappointing reply. I am sure that she appreciates the point of principle at stake. I beg to move.
Baroness Barker: I support the amendments in this group, in particular Amendment No. 196 in the name of the noble Earl, Lord Howe. I will speak briefly to Amendment No. 194. We put this down as a probing amendment, because I could not see anywhere in the Bill a power for provision of public information about lasting powers of attorney and the appointment of deputies. The reason for putting in what perhaps may seem a rather obvious provision is the fact that, in the course of dealing with older people as I do, one comes across many occasions where people have concerns about powers of attorney being misused or abused. They really have no idea where they should take those concerns. The work of the court and the Office of the Public Guardian is not well understood. It is a function that someone begins to understand only once they have come up against something that has gone wrong. At that point, they are scrabbling around to try to figure out what they should do.
There is a very important public information role to be performed. It would be preferable for there to be the power to do that and promote that actively long before abuse arose. That is the reasoning behind that small amendment.
Baroness Greengross: I would very much like to support the amendments. I want to point to the other problem that sometimes arises. Although this is a sort of private arrangement, the Government have introduced a system of enduring powers of attorney and future, lasting powers of attorney. There are horrible cases of serial abuse. It is very easy to have a big scam going on with vulnerable people at its heart. You need only two or three people to set up an abuse ring, so to speak.
We need some system that would make it easier to make that unlikely. There should be a system of referencing and cross-checking that someone is not targeting two or three vulnerable people and making a lot of money from abusing their situation. It is unfortunate, but such dangerous things happen.
Baroness Ashton of Upholland: All the amendments look to add to the functions of the Public Guardian set out in Clause 56. They are all concerned with putting additional safeguards in place to protect against abuse, particularly of lasting powers of attorney. I sympathise with what Members of the Committee seek to achieve. It is because of that concern that we have put a number of safeguards in the Bill, including the requirement to register lasting powers of attorney before they can be used, the certificate stating that the person has capacity and that they are free from fraud or undue pressure, and the provision for the notification of named people.
A key issue running through a number of the amendments is that of striking the right balance between, on one hand, adequate protection of donors of lasting powers of attorney, and, on the other,
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allowing people to make their own decisions without interference from the Public Guardian or anyone else. I will discuss the amendments in turn, beginning with Amendments Nos. 192 and 193.
One of the functions of the Public Guardian is that he should establish and maintain a register of lasting powers of attorney. As the noble Earl knows well, the amendments would require the Public Guardian to maintain a separate register of lasting powers of attorney where notification of their use had been received. In a sense, that relates back to Amendment No. 46, which proposed that the Public Guardian should be notified when a power of attorney is to be used for the first time. As I discussed during our debate on Amendment No. 46, a second registration would not necessarily achieve the result that Members of the Committee seek. For one thing, the power might be used once and then not used again for many years. I gave the example of someone who needed help following a road accident but then made a full recovery.
During our earlier debate, the noble Earl made the important observation that the LPA being registered for the second time would provide a good opportunity for the Office of the Public Guardian to send the attorney information reminding him of his duties, or perhaps the most recent revision of the code of practice. I agree that it is important that attorneys should receive reminders of how they should act, as well as up-to-date information and guidance. That is especially true in cases where the lasting power of attorney may have been drawn up many years before, registered at that point, and has then sat in a drawer until the donor has lost capacity and it was decided to use it.
We discussed the issues of those at their most vulnerable making a lasting power of attorney and the opportunity for people to, in a sense, coerce them at that point. People might create lasting powers of attorney long before they might need to use them.
I do not think that the second registration is the best way to achieve this, partly because circumstances vary so much. In some cases, the second registration might happen a very short time after the first, while in others there may be a long period in between.
The system proposed by the noble Earl would mean that the public guardian contacted donees once, which is when the lasting power of attorney was first used. I think that we can do a lot better than that. I should like attorneys to be reminded often of their duties and responsibilities. I want them to get regular reminders of the work of the Office of the Public Guardian.
Good initial guidance for those acting as attorneys could help them to be proactive in seeking up-to-date information from the OPG. I would expect the advice on drawing up an LPA to say that if the LPA is registered but then not used for a long time, the attorney should contact the OPG when he does want to use it.
When discussing the code of practice, I have said that I expect it to be revised fairly frequently. We shall need to ensure that if any changes are made to the guidance on
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LPAs, attorneys have the revised version drawn to their attention. The best way of achieving this will be considered as part of the public consultation on the code.
I am sure that the OPG will be using new technology to disseminate information and to remind us effectively and efficiently. It may be that in 10 years' time—I can hear myself in the next remark, as I was talking about text messages only a couple of days ago—the OPG will be sending regular e-mails and so on to attorneys. Technology certainly enables us to think about different ways of keeping in touch with those who are registered. There are many ways of ensuring that there is regular contact between the OPG and attorneys.
I do not think that a second register is the best way of achieving that. However, I am grateful to the noble Earl for setting us off on a train of thought. If we want people to think about their own future, we could perhaps increase the number of years between registration and use. There are also issues about the revisions in the code of practice that I would wish to deal with. I hope that my plans and ideas on that will go some way to addressing the noble Earl's concerns.
Amendment No. 194, tabled by the noble Baroness, Lady Barker, refers to the provision of public information about lasting powers of attorney and the appointment of deputies. I am sure that the noble Baroness will realise from what I have been saying that I am very sympathetic to the intention of the amendment. We envisage that the public guardian will become the focal point for information about mental capacity issues, particularly around the value and use of deputies and LPAs. The OPG already produces information in this area and we would expect the new public guardian to continue to do so. That includes leaflets, accessible guidance and website information.
The amendment would make the provision of information in this area an explicit function of the public guardian. I should therefore like to consider further the noble Baroness's proposal as it has a great deal of merit.
I believe that the next amendment in the group has not been formally moved. I have no idea what the procedure is, but I shall sit down and allow the noble Baroness, Lady Chapman, to speak to it.
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