§ 2.57 p.m.
§ Report received.
§ Clause 1 [Enduring power of attorney to survive mental incapacity of donor]:
The Lord Chancellor (Lord Hailsham of Saint Marylebone)moved Amendment No. 1:
Page 2, line 3, leave out ("while paragraph (b) above applies") and insert ("if and so long as paragraph (b) above operates to suspend the donee's authority to act under the power")
§ The noble and learned Lord said: My Lords, I rise to move the first amendment standing in my name. This is a drafting amendment. It became apparent that it is possible to interpret Clause 1(1)(c) so that it confers protection on both attorneys and third parties acting in the period before registration, even if they have acted outside the limits imposed by Clause 1(1)(b) and Clause 1(2). This amendment makes it clear that the protection given by Section 5 of the Powers of Attorney Act 1971 extends only to those transactions where the attorney is acting within the limit prescribed by Clause 1(1)(b) and Clause 1(2). I beg to move.
§ On Question, amendment agreed to.
§ The Lord Chancellormoved Amendment No. 2:
Page 2, line 12, at end insert—
("(3) Where the attorney purports to act as provided by subsection (2) above then, in favour of a person who deals with him without knowledge that the attorney is acting otherwise than in accordance with paragraph (a) or (b) of that subsection, the transaction between them shall be as valid as if the attorney were acting in accordance with paragraph (a) or (b).")
§ The noble and learned Lord said: My Lords, during the Committee stage of this Bill, I gave notice that I would bring forward further amendments that I considered necessary for the protection of third parties who deal with attorneys holding enduring powers, and this is the first of these amendments. As a matter of history, it was brought to our attention by the Bank of England.
§ When a third party deals with an attorney who holds an ordinary power of attorney—that is, a power of attorney other than an enduring power—he may rely upon the authority contained in the instrument, provided that the transaction is clearly within the bounds of that authority and that he does not have notice of any revocation of the power. This is the doctrine based on what is called ostensible authority.
§ Clause 1(2) gives the attorney power to deal with the donor's property after the donor has become mentally incapable but before the power has been registered, without the direction or authorisation of the Court of 109 Protection. But this authority to act is limited to action necessary to maintain the donor or his estate, or to maintain the attorney himself, or other persons, if the donor might have been expected to provide for the attorney or such other persons.
§ A third party who deals with the attorney during this period cannot rely upon the doctrine of ostensible authority; the attorney's authority will derive entirely from the statute once it is passed. After registration the third party may rely upon the face of the instrument and upon the protection given to both attorneys and third parties under Clause 9 and Schedule 2. But before registration of the power a third party dealing with the attorney would have to make extensive inquiries to assure himself that the attorney was in fact acting for the very limited purposes of Clause 1(2). This amendment relieves him of the necessity to make extensive inquiries; the attorney's confirmation that he is acting within the authority conferred on him by Clause 1(2) will suffice, unless of course the third party knows that this is not the case.
§ This protection is conferred on third parties only; the attorney will remain liable to the donor and to the donor's estate if he exceeds his authority under Clause 1(2). I beg to move.
§ On Question, amendment agreed to.
§ Clause 2 [Characteristics of an enduring power]:
Lord Mishconmoved Amendment No. 3:
Page 3, line 17, leave out ("he") and insert ("the donor").
§ The noble Lord said: My Lords, the House will remember that this is a Bill, and a very useful Bill, which deals in the main with the question of those who have failing mental powers or who in some other way are disturbed and are unable to look after their business affairs. So, instead of going through the rather troublesome and expensive procedure—however helpful they always are—of going to the Court of Protection for the affairs of such a person to be administered, there is a possibility of the registration of an enduring power of attorney. That has safeguards written into the Bill, so that the person granting that enduring power is properly protected.
§ At Committee stage, having said that this amendment had the full support of the Law Society, I ventured to draw attention to the clause which deals with minors—may I say at once that the word is spelt "minor"—and it was therefore, from my point of view, an uncontroversial reference to minors. The point about it was that it is not an effective power and it cannot be registered as an enduring power unless both the person granting the power and the attorney execute the document. What appeared from the Bill was that the deed, the power of attorney, could be executed by the person who wanted to grant the power while the attorney was still a minor.
§ It might be months and it might be years before the time came when the person ceased to be a minor and then, and then only, would the power be effective because the person would then execute it, no longer as a minor but as an adult. That seemed to the Law Society, and if I may humbly say so, certainly to me, to be a most unfortunate state of affairs, with this power remaining in limbo, as it could do. Furthermore, it seemed to be an undesirable feature in regard 110 to the very powers we are talking about where we are dealing in the main possibly with elderly people and with people who have some kind of mental disturbance.
§ The noble and learned Lord the Lord Chancellor replied to the earlier amendment by saying, first, that he could not quite see the difficulty and that it might well be desirable for a minor to be appointed—a young child of the person concerned. Secondly, he was good enough to tell the Committee that he had referred the matter to the Law Commission and the Law Commission saw no objection to the wording of the Bill as it stood. I have had time to consider the reply of the noble and learned Lord to that amendment—incidentally, following that reply I withdrew the amendment at the Committee stage—and those advising me have expressed disappointment and, to some extent, surprise, at what the noble and learned Lord said. That is why I bring the matter before your Lordships again.
The reason that those advising me have expressed surprise is that they could not quite see that it was desirable that a donor should be able to appoint a minor attorney under a potentially enduring power even though the appointment was not to be effective unless the attorney executes the power, thereby conferring it and converting it to an enduring power until majority. The noble and learned Lord said, at column 439 of the Official Reportfor 17th December 1984:
It may very well be in the donor's interest to appoint an attorney as young as possible, particularly if the power is not to come into force until many years later.
That ends the quotation, and as I have said, the noble and learned Lord stated that the matter had been referred to the Law Commission.
Having said that, it is possibly not very desirable, in my submission, that a minor should be considered in the majority of cases where we are dealing with people who are elderly and people who are suffering from mental disability. What amazes me is that the Law Commission should find that this clause is acceptable and that the amendment, presumably is not—and I have now had an opportunity to look at its report and in particular at paragraph 4.9. With your Lordships' leave, I shall quote from it:
So far as minors are concerned,"—
says the Law Commission—
we feel it would be unrealistic to expect them to undertake the responsibilities of managing the donor's property and affairs. Admittedly, the disability of minority might have been removed by the time the donor became incapable. On the other hand, many donors would be likely to grant EPAs at a time when, although capable, they were already starting to feel the need for assistance straightaway—not in a few years' time. In any event, however, we do not feel that the appointment of a minor attorney reflects reality. We would envisage that a donor appointing a family attorney would normally appoint a spouse or adult offspring".
That ends that part of the quotation.
If I may, I should like to give another short quotation:
As with minority"—
this refers to bankruptcy—
it might be the case that the disability would be cured by the time the donor lost capacity. Again as with minority, however, many donors would be relying heavily on the attorney from the moment the EPA was executed".
It seems, if I may say so, that the Law Commission was arguing the very point of my amendment. That is that the date of the minority or adulthood should obviously be the date of the execution of the deed, that that is the time when the deed should become effective and be capable of registration, and that there should not be this lacuna, this gap, as there might be with somebody, possibly mistakenly, appointing a person who is a minor aged about 15, with nothing happening until he reaches 18 years of age. I therefore beg to bring this amendment before your Lordships again. I beg to move.
§ The Lord Chancellor
My Lords, I am afraid I cannot give the noble Lord who has brought this amendment forward again a very different answer from that which he received on the last occasion. I am sorry to disappoint him in this way, but the arguments are the same and the views of the parties, including, for what it is worth, myself, also remain the same.
I do not think that the quotations from the Law Commission add anything to the argument as it was then presented. There may be reasons why a donor in fear of his own supervening incapacity wishes to appoint as his enduring attorney a person who at the moment of the appointment is a minor. What is clear is that under the Bill as it stands he will not achieve that object unless the proposed enduring attorney executes after the end of his minority. The Law Commission and, for that matter, those advising me—and I myself—see no reason why in some cases this should not be both permissible and useful. There will, of course, be many cases where it is neither useful nor effective, but that is not a reason for rejecting the right in the donor to make that particular arrangement in cases where it is appropriate.
I drew the attention of the noble Lord, Lord Mishcon, on the previous occasion to what I assumed to be an unintentional danger in the amendment. It allows the possibility of a bankrupt attorney to represent the donor, which on any view is unattractive and unacceptable. The reason is that the amendment as drafted allows the possibility of a bankrupt attorney to represent the donor because the proposed attorney could be solvent when the donor executes the instrument but bankrupt when executing it himself. The matter has been referred back to the Law Commission, as I said, and it agrees with the text of the Bill as drafted. I am sorry that I cannot take the argument any further. It is clearly a difference of opinion between us and I do not want to say anything discourteous to the noble Lord, Lord Mishcon, who never says anything discourteous to me.
§ Lord Mishcon
And, my Lords, would not on this occasion, either. I think the argument has been brought before your Lordships, and it was right that it should be. If the noble and learned Lord will forgive me, I still see a great defect, especially in regard to this special power of attorney and the special circumstances, in having a gap of this nature between the date of the execution of the power of attorney, when there is a minor involved, and his attaining his majority.
112 I repeat: I have put the argument before the House, the noble and learned Lord has resisted that argument, and all that I ought to do now is very respectfully to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 3.15 p.m.
Lord Mishconmoved Amendment No. 4:
Page 3, line 25, leave out from ("successor") to end of line and insert ("shall only be valid as an enduring power so long as the attorney originally appointed by the donor himself acts as such attorney.").
§ The noble Lord said: My Lords, here again I am bringing forward an amendment that I brought forward at Committee stage. I can be rather more brief on this occasion. At present the Bill provides that if an attorney, under the power of attorney, seeks to delegate because he has the power to do so—or, if I may put it more clearly than that, if the power of attorney contains a clause which enables the attorney to delegate—then it is an invalid power from the point of view of the Enduring Powers of Attorney Bill.
§ On the last occasion I submitted, and I submit again, that it is a very heavy step indeed to make a power completely invalid, especially one which is drawn in the circumstances that the Bill seeks to cover, merely because there is a clause in a deed and even though that clause is never invoked. Therefore, what I tried to say in my amendment at Committee stage was that it should become invalid only if the attorney attempts to exercise that power.
§ The noble and learned Lord had a very logical answer, as one would expect, to my amendment, and that logical answer was, first, that it was objectionable to have such a clause in, and, secondly, that if my amendment were carried, however desirable it might be, it could be ineffective in certain cases because no one who was in authority would know that the attorney had delegated his power. That was the main thrust of the noble and learned Lord's argument, except that he also brought in the fact that a third party would not know of the effect of the attorney's passing over of the administration, or some part of it, to someone else to whom he had delegated authority.
§ I have looked at those disadvantages very carefully indeed, but to me—and I again respectfully say that this is also the view of the Law Society—all those disadvantages, if added together (and they are rather hypothetical), do not equal the grave disadvantage of the automatic cessation of a power of attorney given in these circumstances, the automatic invalidity of that power, so that nobody could set it right—no action for rectification, no application to the court, as I understand it, could put it right. The power of attorney that this man or woman thought he had given at a time which was a very trying one in their lives is gone merely because there is a clause in it.
§ I therefore ask the House to reconsider this, as, indeed, I hope courteously, I ask the noble and learned Lord to reconsider the arguments he put forward on the last occasion having regard to the great disadvantage this provision might have. I beg to move.113
§ The Lord Chancellor
My Lords, again I am afraid we are in disagreement with one another. The subsection sought to be amended is line 25 of page 3, which provides that:A power of attorney which gives the attorney a right to appoint a substitute or successor cannot he an enduring power.The noble Lord, I think inadvertently, slightly misrepresented the effect of his amendment. The effect is to delete from the word "successor" to the end of the line, and insert:shall only be valid as an enduring power so long as the attorney originally appointed by the donor himself acts as such attorney.The argument is still unacceptable. In addition, parliamentary counsel is concerned that the effect of the amendment would be to interfere with the registration of instruments during those periods when a substitute was acting. It also defeats the intention behind the scheme that the attorney's powers and responsibilities should be apparent from the face of the document, as should registration.
At Committee stage I drew the attention of your Lordships to the possible dangers inherent in this amendment. I have not changed my view. Indeed, a provision which purports to rely on an attorney to appoint a substitute calls into doubt the whole registration scheme. Third parties would be in difficulties if presented with a substitute attorney, and there would be the question whether registration applied to an instrument during the period when the substitute acted. Moreover, it should be clear from the face of the instrument who the attorney is, and whether or not it is registered, and the amendment runs contrary to that important principle.
I therefore must ask the House to continue in the adherence to the Bill as drafted. Again I am sorry, but we do not agree about this. I had the advantage of the support of the noble and learned Lord, Lord Denning, in Committee. I hope he has not changed his mind either.
§ Lord Mishcon
My Lords, I too have read with customary respect what the noble and learned Lord, Lord Denning, said on the last occasion, and I was bold enough to think that 1 had not made myself sufficiently clear in my amendment, and therefore in moving my amendment, but that if I did so on this occasion, having made myself more clear, I might have his support and not his opposition. But it does not seem that my optimism was justified.
I still feel, if I may put it in one sentence, that a provision in the Act showing that this was a clause that could not be invoked would be a sufficient notice to all parties concerned, and that means of course very particularly the attorney, and that ought to be the proper sanction. Indeed, the invalidity ought to occur only if the attorney did what I have said in my amendment, which would make the power of attorney invalid.
Once again I have brought the arguments before the House. I think that they should have been brought before the House, and, having heard the answer of the noble and learned Lord, with some dismay I nevertheless ask the leave of the House to withdraw the amendment.
§ Amendment, by leave, withdrawn.114
§ Clause 4 [Ditties of attorney in event of actual or impending incapacity of donor]:
Lord Denningmoved Amendment No. 5:
Page 5, line 8, leave out subsection (7).
§ The noble and learned Lord said: My Lords, this is an amendment which was put forward by my noble and learned friend Lord Elwyn-Jones and the noble Lord, Lord Mishcon, on the last occasion. It raises a point of nice legislative draftsmanship. Let me tell you how it arises. Under the old law, if a man gave a power of attorney, that was good, but it failed altogether if he became mentally incapacitated.
The object of this Bill is to give an enduring power of attorney, so that if he becomes incapacitated it still goes on and the attorney can act under it. But there is this qualification. He has to apply to register this power of attorney and it becomes valid and operative once it is registered. The Law Commission saw that some unscrupulous or dishonest attorneys might register it wrongly. They might put in false statements in the application for registration, and for that reason the commission suggested that it should be a criminal offence for an attorney in his application for registration to put in something which he knew to be false. Clause 4(7) as it stands states:
Any person who, in application for registration, makes a statement which he knows to be false in a material particular shall be liable",
to certain punishment.
My point is this. This kind of false statement in any document which is authorised or required by a public Act of Parliament, is already dealt with by a general public Act of Parliament; namely, Section 5(b) of the Perjury Act 1911. All such false statements and such documents as this are already covered by Section 5(b) of the Perjury Act 1911, and that ought not to be duplicated in a small Act like this dealing with another matter. Section 5(b) of the Perjury Act 1911 reads:
If any person knowingly and wilfully makes (otherwise than on oath) a statement false in a material particular, and that statement is made [in] a report, return, or other document which he is authorised or required to make … by any public general Act of Parliament for the time being in force, he shall be guilty of a misdemeanour".
That section already covers this kind of application for registration because it is a document which the attorney is authorised or required to make by public Act of Parliament. I suggest that it is wrong draftsmanship to put in this separate little clause here. But further may I say, to take an illustration, that if you make a false statement in your income tax return there is not a special section dealing with the income tax Acts to deal with it. It has to be dealt with under that Perjury Act of 1911. Indeed a case has been before the courts, the case of The King v. Bradburyin 1921. So if there is a false statement like this in an official document you proceed under Section 5(b) of the 1911 Act, and it is therefore a mistake to have a special small section in this particular Act when it is already covered.
However, there is an even more important point. In the Perjury Act the words are:
knowingly and wilfully makes".
The words, "wilfully makes" bring in, according to the cases, a guilty mind. It has to be done dishonestly.
That has been brought out in many cases already in the courts. The word "wilfully" means it has to be dishonest; otherwise it might be innocent, and under Clause 4(7) as we have now got it that word "wilfully" is omitted. I could go through all the cases, but there are many of them. This statement might be made innocently. A person might describe in his application of registration somebody as a wife when she was really a woman living with him. I suggest that either this clause be amended as it stands by bringing in the word "wilfully", which covers the word "dishonestly", which the Law Commission recommended, or, much better, that this matter should not be a separate clause but should be left to the general Act which covers all these false statements made in official documents. I beg to move.
§ Lord Mishcon
My Lords, the House will have noted what the noble and learned Lord, Lord Denning, said—namely, that on the last occasion this was an amendment which I moved and which he graciously supported. I am waiting to see the tactical effect of having removed my name from the amendment on this occasion and seeing alone the name of the noble and learned Lord, Lord Denning. I think it is going to work miracles!
§ The Lord Chancellor
My Lords, the noble and learned Lord, Lord Denning, has again placed before us the same amendment. He still has only one reason that I have been able to discern for his support of the amendment, even though he, rather than the formidable team on the Opposition Front Bench, has now gone into bat first. It is, that the matter is already covered by Section 5(b) of the Perjury Act, and this would really clutter up the statute with an unnecessary offence. Naturally enough, faced by such an abnormally distinguished battery of legal talent, I have done a little homework since, and I find that the noble and learned Lord is not likely to be entirely right.
To begin with, as to the reference to the tax return the offence is not caused by the Perjury Act but by Taxes Management Act 1970. But I took the trouble to look up Archboldunder Section 5 of the Perjury Act. I think that the noble and learned Lord might be interested to see what the editor of the Forty-First Edition says about Section 5(b) of the Perjury Act 1911. He said:It seems probable that this section will eventually be replaced by a more comprehensive provision, embracing all false statements made on oath otherwise than in judicial proceedings in a statutory declaration or in any oral or written statement required or authorised by or under or in pursuance of an Act of Parliament".Then comes this pregnant sentence:The form in which Section 5 is cast"—that is to say, the present form on which the noble and learned Lord relies—has led to subsequent proliferation of statutory offences of making false statements".I am advised that the statute book in fact has a number of such false statement offences, including the one in the Bill as drafted, precisely because of the criticism of Section 5(b) to which the learned editor has drawn 116 attention. I am told that one such example is Section 38(2) of the Restrictive Trade Practices Act, paragraphs (a) and (b) of which would, on the noble and learned Lord's assumption, be covered by Section 5(b) of the Perjury Act.
Parliamentary counsel also puts forward this argument, of which I was again previously unaware when I resisted the amendment before. There was in the passage from Archbold to which I drew the noble and learned Lord's attention and that of the House this possibility—that documents initiating legal proceedings might be excluded from the Perjury Act altogether; and he refers to a case which I am sorry to say I have not verified called In re F (Publication), which is reported in 1976, 3 Weekly Law Reports, page 307. It shows that the word "proceedings" included applications however informal. The class of documents set out in Section 5(b) of the Perjury Act is very wide but includes no documents which initiate legal proceedings. In the case of a criminal offence, the statute might be strictly construed, and on this basis Section 5(b) might be held not to include the application for registration under the Bill.
Like my noble and learned friend Lord Denning, I do not wish to see the statute book cluttered up with unnecessary prohibitions, but if I accept this amendment there is a distinct possibility that a dishonest attorney who makes a false statement in an application for registration under this Act will be able to get away with it with impunity, and this of course would not be acceptable either to my noble and learned friend or to myself. I am faced with choosing the lesser of two evils. I prefer therefore to retain the subsection so as to be certain that a dishonest attorney will not escape the sanctions of the criminal law.
I hope that with this explanation I have satisfied the House that, although Section 5(b) of the Perjury Act seems to be very wide, there are serious doubts as to whether it is appropriate to rely on it for the purposes of this Enduring Powers of Attorney Bill any more than in some of the other sections where the parliamentary draftsman in relation to other enactments has thought it right to introduce a special offence.
I am hound to add this, though this is, I think, an argument of less weight because it comes from myself. I should prefer actually not to use a steamhammer—namely, the Perjury Act—to deal with the particular offence which is dealt with under this rather modest little law reform measure which I am proposing.
§ Lord Denning
My Lords, I was aware of the passage in Archbold. I would suggest that the Perjury Act 1911 ought to be revised and reconsidered as suggested in Archbold. But in the circumstances, if this offence is going to be just for this particular thing, let it be there, and I will not press the amendment.
§ Amendment, by leave, withdrawn.
§ The Lord Chancellor
My Lords, do I understand from my noble friends that the Statement is now ready?
§ Lord Mishconmoved Amendment No. 6:
§ After Clause 8, insert the following new clause:
§ ("Tux returns.
§ . Notwithstanding the provisions of section 72 of the Taxes Management Act 1972 when an instrument has been registered under section 6 of this Act the Inland Revenue shall recognise the attorney acting pursuant to such instrument as the duly authorised representative of the donor for the purpose of signing any tax returns.").
§ The noble Lord said: My Lords, this is the third occasion on which I rise. Although the previous amendment did not carry with it the miracle for which I hoped, this one may have a happier connotation. On the last occasion I raised the point in my amendment that the statutory provision was that a taxpayer had to sign his returns himself and make himself responsible for them. Having regard especially to what was said by the noble and learned Lord, Lord Denning, about tax returns, one can imagine the sense of that provision. The Revenue obviously wants to be able to go for somebody who signs a document if it is alleging that there was a misstatement in the return.
§ The Revenue exercises a certain amount of discretion where, for example, a taxpayer is ill or for a similar reason somebody signs the tax return on his behalf. I brought to the attention of the Committee of your Lordships' House on this Bill the position that obviously one ought not to have to rely on the discretion of the Revenue, and that in a case where the enduring power of attorney had been registered with all the safeguards, the attorney ought obviously to have the right and the power to sign a tax return on behalf of the person who had granted what had now become the enduring power of attorney.
§ The noble and learned Lord the Lord Chancellor said that he saw some sense in that amendment and that he would consider the position and possibly discuss it with the Revenue authorities. He was gracious enough to write to me in certain terms, but I think that it is much more suitable that I merely move the amendment at this stage, and possibly the House will hear what he has to say. I beg to move.
§ The Lord Chancellor
My Lords, I am very grateful to the noble Lord for raising this question again. Indeed, I think that it was I who suggested in correspondence between us that it would be fair to do so. I rise really only to confirm what he has said and to tell the House, as I think the House is entitled to be told, that the Revenue has agreed to help in encouraging the establishment and use of enduring powers of attorney by so modifying its normal practice as to allow the acceptance of tax returns submitted on behalf of a donor by an attorney holding a registered enduring power.
However, it is important that attorneys appreciate that accuracy when completing returns is essential, and the Revenue will retain its existing powers to ensure accurate completion of payment at the due time. Moreover, Clause 8(4)(g) of the Bill provides that an unsuitable attorney may be removed, and in such circumstances the power will be revoked.
I am very grateful to the noble Lord, Lord Mishcon, for raising this matter again because it enables me to inform the House of what has passed between me and the Revenue and between me and the noble Lord.
§ Lord Mishcon
My Lords, I am sure the House will be gratified to hear of this communication from the Revenue. I am most grateful to the noble and learned Lord for having procured it. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 9 [Protection of attorney and third persons where power invalid or revoked]:
The Lord Chancellormoved Amendment No. 7:
Page 10, line 6, leave out ("power came into operation") and insert ("instrument was registered").
§ The noble and learned Lord said: My Lords, Amendment No. 7, which is in my name, deals with the protection of purchasers who purchase from the original third party to a transaction with the attorney. Under Clause 9(4)(a) of the Bill as it stands, purchasers who deal with such third parties are protected if the original transaction between the attorney and third party took place within 12 months of the date when the power came into operation. However, Clause 9 operates in circumstances where valid powers of attorney were never created at all. It therefore can be said that the power never did come into operation. It is therefore necessary to substitute another date. The most obvious and easiest to ascertain is the date of registration, because this will be apparent from the face of the instrument. It is with that object in mind that I rise to move this amendment. I beg to move.
§ On Question, amendment agreed to.
§ The Lord Chancellormoved Amendment No. 8:
Page 10, line 12, at end insert—
("( ) For the purposes of section 5 of the Powers of Attorney Act 1971 (protection of attorney and third persons where action is taken under the power of attorney in ignorance of its having been revoked) in its application to an enduring power the revocation of which by the donor is by virtue of section 7(1)(a) above invalid unless and until confirmed by the court under section 8(3) above, knowledge of the confirmation of the revocation is, but knowledge of the unconfirmed revocation is not, knowledge of the revocation of the power,").
§ The noble and learned Lord said: My Lords, I now reach the end of my pilgramage on this particular journey. It will ensure the protection of innocent attorneys and third parties. Clause 7(1)(a) of the Bill requires a revocation of an enduring power to be confirmed by the Court of Protection before it is valid. It could be argued that an attorney who receives a revocation of his power is thereby put on notice of a possible defect in his authority and should stay any transactions until the court has decided whether or not to confirm the revocation. A similar argument could apply to a third party who has notice of a purported but unconfirmed revocation of the power.
§ But, alas, if the donor's mental incapacity is such that he seeks, possibly even seeks frequently, to revoke the power, then the attorney—and any third party dealing with him—would be in an intolerable position if he had to wait each time for the court's decision before completing the relevant transaction. This amendment makes it clear that neither the attorney nor a third party has to take any notice of the purported revocation unless and until it is confirmed by the court. I beg to move this amendment.119
§ Lord Elwyn-Jones
My Lords, before the pilgrimage is finally terminated, may I indicate that my silence shows no disapproval—on the contrary, support—of this Bill which is still enduring.
§ The Lord Chancellor
My Lords, as Saint Thomas More said on a famous occasion,qui tacet consentire videtur".
§ Lord Elwyn-Jones
My Lords, that translated into Welsh means, "Diolch yn fawr". Thank you very much.
§ On Question, amendment agreed to.