How laws are made
And the lawyers who help make them
The government’s Powers of Attorney Bill will be given a second reading in the House of Lords tomorrow. It’s fine as far as it goes — although it doesn’t go very far.
Lasting powers of attorney allow people to plan ahead for a time when they may no longer have capacity to take decisions for themselves. But the current paper-based system, though introduced as recently as 2007, is regarded as out-of date.
The justice minister, Mike Freer, told MPs it was “stressful, confusing and bureaucratic”. Rather more importantly, perhaps, he revealed that the Office of the Public Guardian, which supervises the scheme, “is at risk of financial unsustainability because its costs are expected to increase while fee income is forecast to plateau”.
As the government explains, the bill will provide for new digital processes:
The effect of this will be that donors find it easier to create their lasting powers of attorney while also being better protected from abuse. The public will be better protected from fraud and the Office of the Public Guardian will be able to run a more streamlined process that delivers better value for its fee-payers.
Why does this matter?
Why is this of particular interest to those who follow law reform? Two reasons, really.
The first is that the bill, though drafted and supported by the government, was introduced by a backbench Conservative MP, Stephen Metcalfe. He won one of 20 coveted places — the 20th, in fact — in the annual private members’ ballot last summer. There were 460 hopefuls.
In principle, that meant he could introduce any legislation he liked. In practice, though, his only chance of getting the law changed was to introduce a bill with government support. Private members’ bills can easily be blocked, either by governments or by other back-benchers.
However, government departments have plenty of low-priority bills that are waiting for slots in the legislative timetable. And backbenchers are looking for reforms that will get through parliament and show their constituents that they have done something worthwhile. So everybody’s happy when a backbencher introduces legislation of this kind.
The second reason for discussing this bill is to draw attention to more deep-seated problems in the field of mental capacity.
Jeremy Gordon, senior partner at the solicitors Farrer & Co, told me the bill was welcome but there was cause for concern that people with mental health difficulties were vulnerable to financial and predatory abuse when making a will:
The legal test for capacity to make a will, which dates from 1870, is different in its formulation from the test in the Mental Capacity Act 2005 of capacity to make other decisions. That inconsistency is unhelpful. The Law Commission is currently looking at this and we hope that it will recommend legislation to modernise the test in the next few years.
But capacity isn’t the whole story. Certainly, even the test in the 2005 legislation may not acknowledge the nuances of those in the so-called twilight zone, the period where an individual experiences symptoms of cognitive decline but is deemed to retain mental capacity in the eyes of the law.
In this period, people are especially vulnerable to financial exploitation. The threshold for proving undue influence in relation to a gift by will is set very high: you have to prove a high degree of pressure or coercion.
By contrast, for gifts made during the donor’s lifetime undue influence is actually presumed in certain classes of relationship or where there is a relationship of trust and confidence. It will then be for the person benefitting from the gift to prove that there was no undue influence.
No such presumption applies to gifts by will and therefore undue influence in relation to wills is much harder to prove. This presents another rather arbitrary inconsistency which should be remedied.
Change to provide better safeguards for vulnerable individuals is clearly needed and has been suggested by the Law Commission and key stakeholders. But progress has been marred by government delays. Thankfully the Law Commission’s will reform project has recently been reinstated so we hope to see some improvements in the law emerging over the next couple of years.
Sir Matthew Farrer 1929-2023
The partner at Farrer & Co whom I knew best was Sir Matthew Farrer GCVO, private solicitor to Queen Elizabeth II from 1965 to 1994. His wife Johanna eschewed her title and was always known as “Mrs Farrer” at the prep school where she was a part-time music teacher.
Visiting the couple’s modest home in Turnham Green for their annual mulled wine and mince pies party, you might just spot a Christmas card on the mantelpiece signed personally by Her Majesty. But that was as close as a journalist could ever get to whatever was going on. A splendid obituary in The Times this week accurately records that Farrer was “more Trappist than a Trappist monk”. But he did treat me to a rather splendid dinner at Fishmongers’ Hall when he was prime warden.
How parliament works
I had also been planning to write a few paragraphs this morning on what Lord Pannick KC described in the House of Lords on Tuesday as a “constitutional outrage”. But David Allen Green got there first:
Update 19 September: the Powers of Attorney Act 2023 received royal assent yesterday.
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