Clause 103.—(PARTICULAR POWERS AS TO PATIENT'S PROPERTY AND AFFAIRS.) (Hansard, 24 July 1959)

§ Mr. Walker-Smith

I beg to move, That this House doth agree with the Lords in the said Amendment.

This is the only Amendment arising out of Part VIII, which deals with the management of property and affairs of patients and which some of us find not the least difficult part of the Bill. The Amendment is designed to ensure that the court's power to vary a settlement shall continue to be as wide as it now is under Section 171 of the Law of Property Act, 1925. A settlement made under that Section may be varied where the court is satisfied that any material factor was not disclosed at the time the settlement was made, and also on account of any substantial change in circumstance. By the Eighth Schedule to the Bill, Section 171 of the Law of Property Act is repealed in toto.

When the Bill was prepared we thought that the power to vary settlements should be kept as narrow as possible, and that view is reflected in the drafting of subsection (4) of the Clause. It limits the 1707 power to vary to cases where there has been non-disclosure of material facts, and this extends it to the other ground under the Law of Property Act which was on account of any substantial change in circumstances. What was then thought was that the court would write into the settlement the appropriate procedure for variation, if any were likely to be needed.

It now appears that a number of settlements made by the Judge in Lunacy under Section 171 of the Law of Property Act have contained no express power to vary, because reliance was placed on the court's statutory power. In any case, we should have had to introduce a transitional provision to prevent hardship arising in that type of case. That being so, it seems better in the interests of simplicity, to maintain the court's existing powers under Section 171 (7) of the Law of Property Act unimpaired.