Powers of Attorney Bill – what changes would it make to the LPA regime in England & Wales: walkthrough and amended version of MCA

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.  Stephen Metcalfe MP introduced in December a Private Members’ Bill, the Powers of Attorney Bill 2022, which has government support, and has progressed beyond second reading.

Despite the helpful Explanatory Notes, the Bill is not an easy piece of legislation to read on a standalone basis.  I have therefore prepared an entirely unofficial version of Schedule 1 to the Mental Capacity Act 2005 (providing for formalities relating to LPAs) as it would stand if it were amended by the Powers of Attorney Bill.

I have also done a short walkthrough of the Bill and some of the key changes it is proposing (as well as one key one which is not been proposed.

As I note at the end of the video (and not just because it somehow came up on the floor of the House[1]) my hope that it will 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]

[1] The Government’s response being it “remain[s] committed to the principle of supporting decision making but believe[s] that that is provided best by the Mental Capacity Act 2005. The proposals in the consultation were carefully considered by the Government, but we still have concerns that a formal framework may be unnecessarily legalistic and would overlap with other provisions, such as advocacy.”

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