HC Deb 23 July 1987 vol 120 cc598-600 10.52 pm
The Minister of State, Northern Ireland Office (Mr. John Stanley)

I beg to move, That the draft Enduring Powers of Attorney (Northern Ireland) Order 1987, which was laid before this House on 6th April, in the last Session of Parliament, be approved. Perhaps it would be for the convenience of the House to discuss also the following motion: That the draft Enduring Powers of Attorney (Northern Ireland Consequential Amendment) Order 1987, which was laid before this House on 6th April, in the last Session of Parliament, be approved. The two orders, the substantive order and the consequential amendment order, are based on the recommendations of the Law Commission's report No. 122 entitled "The Incapacitated Principal". They closely correspond to the Enduring Powers of Attorney Act 1985 that applies in England and Wales.

As the House knows, a power of attorney is an arrangement whereby one person, the donor, grants another, the attorney, power to act on his behalf. Under present law, a power of attorney automatically comes to an end if the donor becomes mentally incapable. That is the time when he may well be most in need of someone to manage his affairs. The only course open to his relatives in such circumstances is to apply to the Office of Care and Protection in the High Court for the appointment of a controller. That procedure has recently been improved with the coming into operation of the Mental Health (Northern Ireland) Order 1986. But is it, of necessity, a formal procedure which can be both time-consuming and expensive.

Against that background, the Law Commission recommended that the law should be changed to provide for a special kind of power of attorney, known as an enduring power of attorney, which would be capable of continuing regardless of the donor's mental condition. The Commission devised a detailed scheme, with built-in safeguards for the donor, the attorney, and third parties dealing with the attorney. That scheme is closely followed in the order before the House. It should provide a relatively informal means of managing a mentally incapacitated person's affairs without resorting to administration through the High Court under the mental health legislation.

Article 4 of the order sets out the framework of an enduring power of attorney. Unlike an ordinary power of attorney, an enduring power will have to be in a prescribed form. It will have to be executed by both the donor and the attorney. It will have to contain certain explanatory information making it plain to the donor the nature of the power which he is creating. It will contain a statement that the donor has read that information or had it read to him.

Central to the scheme is the role of the court. The attorney has a clear duty under article 6 to take steps to register the enduring power in the Office of Care and Protection of the High Court as soon as he has reason to believe that the donor is mentally incapable of managing his affairs, or that he is becoming so incapable. But before applying to the High Court for the registration of the enduring power, he must notify certain specified relatives as well as the donor himself unless the court allows him to dispense with notices to certain persons. The notification requirements allow the recipients of notices to challenge the application for registration on the important grounds specified in article 8, paragraph 5. These are that the power created by the instrument is not a valid enduring power or no longer subsists, that the application is premature because the donor is not becoming mentally incapable, that fraud or undue pressure persuaded the donor to create the power, and that the attorney is unsuitable. Any challenges would be determined by the High Court.

On the registration of an enduring power, the donor is effectively presumed to be mentally incapable and can no longer revoke the power unless and until the court confirms such a revocation. The affairs of the donor are almost completely in the hands of the attorney, although the court has a supervisory role and may exercise certain functions in relation to the donor's affairs. These are set out in article 10. As an ultimate sanction, it must cancel the registration of the enduring power if it is satisfied that any of the grounds mentioned in article 10, paragraph 4, have been proved.

So far, I have dealt principally with the safeguards which the order provides for the donor. But it is important that third parties such as any purchasers of the donor's property should be able to deal with the attorney in good faith, confident in the knowledge that any such transactions would be effective and not liable to be set aside. Article 11 provides the necessary protection. It also protects the attorney who acts in good faith.

The purpose of the draft Enduring Powers of Attorney (Northern Ireland Consequential Amendment) Order is simply to amend section 7(3) of the English 1985 Act which provides for the reception of office copies of English-registered enduring powers throughout the United Kingdom as evidence of their contents and of the fact that they have been registered. The consequential amendment order extends the same evidential provision to office copies of Northern Ireland-registered enduring powers.

The draft order has been welcomed by those who have commented on it, and I commend it to the House as a useful law reform measure.

10.59 pm
Mr. James Marshall (Leicester, South)

Once again I must thank the Minister for his full explanation of the order. I hope that it does not become too much of a habit, and every time the Minister speaks I respond by complimenting him on the way that he has spoken and the explanation that he has given.

I welcome the enduring powers of attorney order and the consequential order. The Minister and the House are aware of two things: first, that we all want to go home; and, secondly, that the Enduring Powers of Attorney Act 1985 has been well received in England and Wales and has been widely used. It fulfils a real need in England and Wales, and I am sure that it will fulfil the same kind of need and serve the same useful purpose in Northern Ireland.

In another place my noble Friend drew the attention of the Minister to a number of lessons that had been learnt since the English Act was passed. My noble Friend sought an assurance that when the Northern Ireland Office drew up the regulations dealing with the order the lessons learnt in England would be taken into account. I repeat that question to the Minister tonight. When the Northern Ireland Office draws up the regulations under the order, will it take into account all the lessons learnt in England and Wales since the 1985 Act was brought into effect?

Mr. Stanley

I am extremely pleased to give the hon. Gentleman that assurance.

Question put and agreed to.

Resolved, That the draft Enduring Powers of Attorney (Northern Ireland) Order 1987, which was laid before this House on 6th April, in the last Session of Parliament, be approved.