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Chamber and committees

Health, Social Care and Sport Committee [Draft]

Meeting date: Tuesday, May 9, 2023


Powers of Attorney Bill

The Convener

We move on to another evidence session with the Minister for Social Care, Mental Wellbeing and Sport. This time, it is on the Powers of Attorney Bill legislative consent memorandum.

I welcome back Maree Todd. I also welcome from the Scottish Government Douglas Kerr, who is a lawyer in the legal directorate; Peter Quigley, who is adults with incapacity team leader in the mental health law and incapacity unit; and Sarah Saddiq, who is a policy manager in the mental health law and incapacity unit.

The purpose of the Powers of Attorney Bill is to enable modernisation of the process for making and registering a lasting power of attorney made under the Mental Capacity Act 2005.

The Delegated Powers and Law Reform Committee considered the legislative consent memorandum relating to the bill at its meeting on 18 April, and it raised no issues.

I invite the minister to make a brief opening statement.

Maree Todd

Good morning, and thank you for inviting me to speak about the Powers of Attorney Bill and the associated legislative consent memorandum.

Powers of attorney appointments are incredibly powerful and useful. They allow people to retain control over aspects of their lives in circumstances in which they might not otherwise be able to make decisions or take actions. They ensure that people have the opportunity to make provision for a future in which they might no longer have the mental capacity to understand what is happening to them and therefore to make decisions about the things that they care about.

The Powers of Attorney Bill is intended to modernise the process for making and registering English and Welsh lasting powers of attorney. The bill also adds chartered legal executives to the list of individuals who can certify a copy of a power of attorney.

The bill is a private member’s bill. It was introduced by Stephen Metcalfe MP in the House of Commons on 15 June 2022. The bill passed the committee stage in the House of Commons on 1 March 2023 with broad cross-party support. It has now completed its passage through the House of Commons, and it is awaiting a second reading in the House of Lords.

Clause 1 introduces the schedule, which contains various provisions that will allow for a simpler process for making and registering a lasting power of attorney. That will increase access by allowing lasting powers of attorney to be made and registered electronically in England and Wales.

Most of the provisions of the schedule extend only to England and Wales, but one provision of the schedule extends to Scotland and requires the consent of the Scottish Parliament. That is paragraph 8, which concerns proving the content and registration of an electronically registered lasting power of attorney throughout the United Kingdom.

Clause 2 amends section 3 of the Powers of Attorney Act 1971 to enable chartered legal executives to certify a copy of a power of attorney. That extends throughout the United Kingdom. That provision also requires the consent of the Scottish Parliament. The provision will increase the channels through which consumers can certify a copy of a power of attorney and promote consumer choice. That is why we are asking Parliament to provide its consent to those amendments to Scots law.

It is right that we support a bill that increases the accessibility of powers of attorney. We know from the work that Scottish Mental Health Law Review has undertaken that using powers of attorney can encourage people to think through how they might want their health, welfare and financial affairs to be managed in the future. That means that adults who use powers of attorney are better placed to be as involved as possible in decisions about their lives, even if their circumstances change.

I am pleased to recommend supporting the bill, because it aligns with the key Scottish Government priorities of increasing accessibility of powers of attorney and ensuring that the most vulnerable people in society are protected.

With the prevalence of dementia increasing and our population ageing, power of attorney documents will become ever more important in ensuring that people can continue to live the lives that they want to live. That is why I have recommended that Parliament consent to the relevant provisions of the bill.

The Convener

Thank you very much, minister.

As no other member has a question, I will ask a small question. The minister might well want to write to the committee on this issue if she is not able to address it directly today.

Ahead of the session, the committee received submissions from the Law Society of Scotland, the Faculty of Advocates and the Office of the Public Guardian in Scotland. The Law Society of Scotland raised one issue relating to the recognition of Scottish powers of attorney in England and Wales, which is causing practical difficulties and is the source of “frequent complaints”, which the Law Society of Scotland advises the committee the UK bill will not resolve. Are there any plans for the Scottish Government to consider that issue? If so, what would the timescale be?

Maree Todd

The legislation currently allows for the recognition of Scottish powers of attorney in England and Wales. Paragraph 13 of schedule 3 to the Mental Capacity Act 2005 states that

“if the correct process has been followed for the Power of Attorney to be created in Scotland, it would be legally recognised in England and Wales without the need for further action from either the Court of Protection or Office of the Public Guardian ... for England and Wales.”

Given that there is already legislation in place that provides recognition of Scottish powers of attorney in England and Wales, I am not persuaded that further legislation is the answer. However, this is about ensuring that institutions and organisations have awareness and are educated on the legal status of Scottish powers of attorney.

I would liken the debate to the debate about accepting Scottish £10 notes in England. They are legal tender, but they look unfamiliar and people are not aware of them. The point is that it is not the law that we need to change; we need to change the understanding of what the Scottish powers of attorney are and of the fact that they look just a little bit different.

We would be keen to commit to working with third-party organisations to raise awareness through publicity about the validity of Scottish powers of attorney in England and Wales rather than change the law, because the law already allows for recognition of those powers.

I thank the minister for her answer.

As no other members of the committee have any questions, I thank the witnesses for their attendance.