In May 2022, the Ministry of Justice indicated in its response to the Modernising Lasting Powers of Attorney consultation that it intended to bring forward primary legislation to amend the MCA 2005 to reform a number of key provisions relating to LPAs. I summarised the headline points of what the Ministry of Justice indicated that it was minded to take forward in this post here. In June 2022, Stephen Metcalfe MP, a Conservative MP, won a slot to introduce a Private Members’ Bill; that Bill has today (7 December 2022) been published, and it is now clear that (as some had anticipated) it was to be used as a vehicle to introduce substantial amendments to the making of LPAs. As the Explanatory Notes (prepared by the MOJ with the consent of Stephen Metcalfe MP) indicate, if the Bill passes, it will amend the MCA (and provide for secondary legislation) to:
• Allow regulations to provide for different ways to make an LPA depending on whether this is done digitally or on paper, or a mix of the two.
• Ensure only the donor can apply to register the LPA.
• Provide for regulations to set out identity verification requirements that must be met for an application to register an LPA to be accepted.
• Require the Office of the Public Guardian to notify the parties when an application to register an LPA is complete and the registration process is starting.
• Enable the Office of the Public Guardian to operate a triage system for certain types of objection.
• Widen the group of people who can lodge an objection so that it includes third parties not named in the LPA.
• Provide for new forms of evidence of the LPA to be created and accepted and for the electronic form of the LPA as registered to be evidence of the LPA.
The Bill also includes a measure to enable Chartered Legal Executives to certify copies of powers of attorney by amending S.3 of the Powers of Attorney Act 1971. This stipulates that a copy of a power of attorney can only be signed by the donor of the power, a solicitor, a person authorised to carry on notarial activities or a stockbroker. Chartered Legal Executives are not currently part of this list.
Parliamentarians will no doubt wish to scrutinise the Bill carefully, not least to ensure that the moves to secure the benefits of digitalisation do not inadvertently exclude any of those who might benefit from being able to execute an LPA. And those whose responses to the consultation did not find favour (for instance the Law Society, seeking to ensure that certification expressly includes consideration of the donor’s capacity) will no doubt seek to raise these matters with Parliamentarians.
I also hope that it would be possible for Parliamentarians to recall that LPAs are but one – very important – mechanism by which it is possible to support the exercise of legal capacity. It would be equally possible within the same zone of endeavour to flesh out the provisions of the MCA 2005 to secure that a person is recognised as being able to make their own decisions in more situations than is currently the case. And if any Parliamentarian does want to pull off the shelf drafting which would provide for this, they could do worse than revisit the Law Commission’s Mental Capacity and Deprivation of Liberty report,* which contained provisions for a regulation-making power to establish a supported decision-making scheme, in Clause 12 of its draft Bill. For ease, I reproduce the clause below:
(1) The appropriate authority may, by regulations, establish a scheme (a “supported decision-making scheme”) to support persons in making decisions about their personal welfare or property and affairs (or both).
(2) In order to be supported to make a decision under a supported decision-making scheme a person (a “decision-maker”) must—
(a) be aged 16 or over,
(b) have capacity to appoint a person to assist the decision-maker in making that decision, and
(c) meet such other requirements as to eligibility to participate in the supported decision-making scheme as are prescribed by regulations made under subsection (1).
(3) In order to support another person to make a decision under a supported decision-making scheme a person (a “supporter”) must—
(a) be aged 16 or over, and
(b) meet such requirements as may be prescribed by regulations made under subsection (1).
(4) Regulations under subsection (1) may—
(a) specify decisions relating to personal welfare or property and affairs which are not decisions to which a supported decision-making scheme may apply;
(b) make provision about how a decision-maker appoints a supporter and how an appointment may be varied or terminated;
(c) make provision for a decision-maker to appoint more than one supporter to assist the decision-maker in making decisions;
(d) make provision about the role of the supporter and how a supporter is to assist a decision-maker in making decisions
(e) prescribe standards which must be met by a supporter in acting as a supporter under a supported decision-making scheme;
(f) make provision for the monitoring of decisions taken with the assistance of a supporter under a supported decision-making scheme including provision for monitoring whether any standards prescribed pursuant to paragraph (e) have been met;
(g) make provision about how the costs associated with the establishment and use of a supported decision-making scheme are to be met.
(5) The “appropriate authority” means—
(a) in relation to a scheme in England, the Secretary of State, and
(b) in relation to a scheme in Wales, the Welsh Ministers.
The rationale for this approach was set out in the Law Commission’s report (in Chapter 14), but a key point is that such an approach would:
allow the Governments to undertake a public consultation on the details of the process, and provide the opportunity to learn lessons from the mechanisms introduced into Irish law by the Assisted Decision-Making (Capacity) Act 2015 of “assisted decision-making” and “co-decision-making”
[*Full disclosure, I was a consultant to the Law Commission for this project, so obviously have something of a personal interest in this]