HC Deb 31 July 1998 vol 317 cc567-8W
Mr. Todd

To ask the Parliamentary Secretary, Lord Chancellor's Department what assessment he has made of the obligations to maintain accounts and other disclosures required of attorneys who have been granted enduring power of attorney. [53900]

Mr. Hoon

The Public Trust office acts as registration authority for Enduring Powers of Attorney (EPAs) under the Enduring Powers of Attorney Act 1985.

Arrangements for keeping accounts of an Attorney's dealings under an unregistered EPA would be for the Donor and the Attorney to decide, since an Attorney can act under an unregistered EPA only while the Donor maintains his mental capacity, and wishes the Attorney to act for him. When the Attorney believes that the Donor is or is becoming mentally incapable, he has a duty to apply to the Court of Protection to register the EPA. It is presumed therefore that this question refers to registered EPAs.

The Attorney has a duty under common law to keep accounts of his transactions involving the Donor's money. However, the Act does not require any routine checks on an Attorney's dealings with a Donor's estate. Nor does the Attorney have to prepare accounts in a special form.

The Law Commission, who first proposed the legislation in their Report of 1983 (Law Com No. 122, The Incapacitated Principal), recognised that to impose requirements to keep accounts would be not only a burden on the Attorney but also an expensive charge on the Donor's estate. The matter is thus left to the Court's discretion.

Under section 8(2) of the Act the Court may call for accounts to be submitted regularly at the time of registration, if the circumstances of the individual case require it. It may also call for accounts to be submitted after registration, if it has reason to inquire into an Attorney's dealings.

The Attorney has a duty of confidentiality to the Donor and there are no "other disclosures" required of him.

In 1995 the Law Commission produced a report called Mental Incapacity (Law Com No. 231) as part of their programme of law reform. The Report covers a wide field, including EPAs. It recommends that a new form of Power of Attorney, to be called a "Continuing Power of Attorney", should be introduced, which would enable an Attorney to deal with the Donor's personal and health care matters as well as his financial affairs. A Green Paper, "Who Decides", was issued in December 1997; the consultation period closed at the end of March 1998.