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Baroness Andrews: The reason I have confidence that we will meet the target of getting rid of all the cases is that, since 2000, we have placed 3,000 cases with private receivers. Over the past 10 monthssince April 2004we have placed 520 of them. We have a good track record and people are coming forward.
Lord Kingsland: I entirely accept that. I think that the noble Lord, Lord Goodhart, and I agree that this
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is the direction that events will have to take. However, as from last November, we have the evidence of the ombudsman's report; so we know that we have to be especially wary of transferring the remaining 240 accounts unless we can be absolutely certain that the system of accountability and transparency will be in place. I beg leave to withdraw the amendment.
The noble Lord said: The amendment was suggested by Age Concern. It enables me to revisit the issue of LPAs, which may be entered into as a result of undue influence from those with criminal intent where the fact of undue influence might not otherwise be spotted. What I am worried about, and what worries Age Concern, is the possibility of a serial scam involving the same individual preying on a series of elderly peopleperhaps using the same complicit witness each timewith the objective of stealing from them.
The purpose of the amendment is to make sure that the Public Guardian would have a duty to cross-reference key data in the register of LPAs. In that way, he would more easily be able to identify such scams if the names kept cropping up. I hope that the Minister will be able to give some sort of reassurance about the systems that will be in place to meet the kind of concerns that I have outlined. I beg to move.
Baroness Andrews: I shall speak to Amendment No. 196BA. We are alive to the concerns that the noble Lord has raised. Age Concern is greatly worried that abuse is minimal and that vulnerable people have maximum protection.
Clause 56(3) lists the subjects on which regulations may be made about how the Public Guardian carries out his functions. The amendment would add to that list of functions, which in our court makes for a problem initially. The amendment refers to the cross-referencing of data contained in the LPA instruments that the Public Guardian will hold on his register of LPAs.
That is not necessary, primarily because there is already provision for the Public Guardian to cross-reference in situations where it will be most effective. For example, if someone applied to be a deputy, the Public Guardian could check to make sure that there was not already an attorney in place. If the concern is about serial donees, he could check to see whether the donee was acting for other donors. We have provisions to meet those concerns.
We also have a problem about the notion of such a specific function of the Public Guardian. His functions are essentially to register LPAs and to investigate concerns, not to cross-reference information. That might be enabling, but is not a function. Those extra safeguards are in the Bill, and to add a more sophisticated level would probably be disproportionate. When we come to
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consider our systems for developing and supervising, we shall be looking at robust IT systems that can meet the problems identified by the noble Lord.
"(7) The Public Guardian acts as trustee in respect of monies he receives on behalf of P.
(8) In exercising his functions as trustee under subsection (7) the Public Guardian must exercise such care and skill as is reasonable in the circumstances, having regard in particular
(a) to any special knowledge or experience that he has or holds himself out as having, and
(b) to any special knowledge or experience that it is reasonable to expect of a person acting in the course of that kind of business or profession."
The noble Lord said: In view of what the noble Baroness said about the Public Guardian no longer acting as a trustee in respect of moneys he receives on behalf of a client once the Bill is on the statute book, it is plain that Amendment No. 196C is surplus to requirements. I wonder whether the noble Baroness will confirm my interpretation. I beg to move.
Baroness Andrews: The noble Lord has saved me hours of time explaining it again. He is absolutely right. I would also say that the Public Guardian has never been a trustee. There has been a confusion of nomenclature which has not least confused the noble Lord. I shall leave it there.
Lord Kingsland: I am grateful to the noble Baroness for informing your Lordships' House that the Public Guardian has never been a trustee in law. I understand that the Public Guardian is not a trustee but an agent in law. That is one of the reasons why I tabled the amendment. Had the Public Guardian remained responsible for the trust funds, it would be appropriate for him to have been subject to all the responsibilities to which a trustee in private law is responsible. That is now all water under the bridge. I beg leave to withdraw the amendment.
The noble Lord said: The amendment would require the Court of Protection visitor to write a report after any interview with the client, and a copy of the report to be sent to the client's donee of a lasting power of attorney.
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The amendment was foreshadowed in some of my earlier remarks about the importance of integrating the financial dimension of a client's life with the care dimension. The two are technically separate and ought to be properly integrated. In the light of what was said earlier, I wonder whether the amendment goes far enough. We may need to devise other ways of linking the work of visitors with donees of lasting power of attorney to ensure that the financial resources available not only match the requirements of the client but maximise the benefits that the client can get from the money spent on them. I beg to move.
Baroness Andrews: My Lords, the visitors are very like the Lord Chancellor's visitors. They are the eyes and the ears of the court. They will visit people under the court's jurisdiction and provide reports about the circumstances and needs of those under their care.
The Public Guardian will work with the court to establish a strategy that will determine when these visits will be carried out and who will be visited. Perhaps I may write to the noble Lord to give him such detail as we have about the role of the visitors. This is useful background information. In view of the time, it might be helpful to the House if I were to do that. I shall address the amendment as it stands.
The amendment seeks to provide that in every case where a visit is carried out it is followed by a written report, and that a copy of it would automatically be provided to the donee. The most important thing to say to reassure the noble Lord is that it is already established practicealthough it is not a mandatory requirementfor a written report of a visit to be supplied to the court following a visit by a Lord Chancellor's visitor. There are no plans to alter that. The written report will continue to remain a vital part of the process.
However, we do not want to see removed the right of the court to ask for a verbal report. That is the effect of the amendment. It is important to keep the flexibility because in situations of extreme urgency we need to allow the court to accept an initial verbal report in the interests of making a timely decision. It may well be in the best interests of that person if the visitor were able to provide a verbal report, which would then be followed up by a written report.
New terms and conditions for Court of Protection visitors will necessarily be required when the Bill is implemented. It is anticipated that such terms will allow for some flexibility. The important thing I should like to stress to the noble Lord is that if there is an oral report there will always be a written report following it up. But we do not want to take that flexibility away.
In terms of access, the noble Lord has a very important point. At the moment, Section 103(8) of the Mental Health Act provides that visit reports must not be released to any third party without the express consent of the court. But it is already established practice for the court to allow disclosure, and the court and Public Guardian recognise that receivers often find it reassuring to receive such a report. We would want to retain that policy of informed disclosure.
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However, the amendment causes us a problem. Although my noble friend has highlighted the argument in favour of automatic disclosure, there will be cases where to do so will not be in the interests of the person involved. The court might commission a visitor to visit the donor because there have been allegations of financial abuse concerning the attorney. The purpose of the visit might be to interview the donor to gather information about the circumstances. Automatically providing a copy of the report would alert the attorney to the investigation and could well prejudice further progress. So that is the problem that we foresee. We do not want to fetter the discretion of the court and the Public Guardian. We need them to be able to exercise judgment when disclosure would be appropriate.
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