Fairbrother Russell: Protection of Personal and Property Rights Amendment Bill — In Committee 
Fairbrother Russell: Protection of Personal and Property Rights Amendment Bill — In Committee 
[Volume:642;Page:11822] 
RUSSELL FAIRBROTHER (Labour) 
: 
 It is my pleasure to follow the previous speaker Paul Hutchison who wobbled around the point until he thought of something to say which was very typical of his contribution in the select committee process too. His concern was mostly with the pineapple slices on the table instead of getting to the meat of the subject. 
I was delighted to hear the Minister Ruth Dyson say that great camaraderie had broken out in the select committee. That may well be an exterior witness’s viewpoint of it but I have to say it was an enjoyable select committee for only two reasons: one because of Michelle Malyon who left the committee today to go to richer pastures and who will be a loss to the Clerk’s Office; and two because the committee was very well led and because during the time of its being very well led some of the contentious matter was dealt with. 
Hon Member 
: Who by? 
RUSSELL FAIRBROTHER 
: Georgina Beyer. Then a new leader took over and we got to the substance of the matter. 
Tonight in the 5 minutes available to me I first of all want to make clear that enduring powers of attorney have two forms: the property enduring power of attorney and the personal care and welfare enduring power of attorney. Those two forms are often mistaken and muddled up. They are muddled up and amalgamated into what is known as a living will. Neither of those powers of attorney are living wills. In fact there is no such thing as a living will although people talk about them as though they are some great invention of the neo-liberals opposite. 
Judith Collins 
: What? 
RUSSELL FAIRBROTHER 
: Yes I knew that member might be listening. 
Judith Collins 
: I’ve been called many things but never a liberal. 
RUSSELL FAIRBROTHER 
: And never new either. 
 I want to talk particularly about clauses 9 and 10 of the bill. 
Dr Richard Worth 
: Clause 9 has been deleted. 
RUSSELL FAIRBROTHER 
: Oh that member wishes it had been deleted because it is about property. The onus upon a lawyer is now much more considerable and the charging practice of that interjector would never make him capable of doing properly the work of an enduring power of attorney in property matters. I draw that member’s attention to subsection (4) of section 97 inserted by clause 9. The subsection imposes an obligation on the attorney to be forever vigilant as to the welfare of the donor. The term “the welfare of the donor” is a concept that is quite strange to that member who interjected before but I have to say that at the end of the day even property matters have ultimate beneficiaries—individuals and human beings—none more so than those covered in new subsection (4) in section 97 which will be inserted by clause 9 of this bill. 
New subsection (4) provides that the donor may authorise the enduring power of attorney to have effect while the donor is mentally capable and to continue to have effect if the donor becomes mentally incapable or only if the donor becomes mentally incapable. There is an important difference there that we should remember. It is clarified in the bill. The enduring power of attorney for property matters arises from one of those two matters. 
I really want to talk about clause 10 of the bill which inserts new section 97A. This amendment imposes on an attorney quite a high threshold of obligation. New section 97A describes how an attorney under an enduring power of attorney in relation to a donor’s property is to exercise that power if the donor becomes mentally incapable. Referring to subsection (2) of section 97A the obligation of the attorney is such that: “The paramount consideration of the attorney is to use the donor’s property in the promotion and protection of the donor’s best interests”. That statement may seem obvious but in my submission this is where the important part comes in. Subsection (2) goes on to state: “while seeking at all times to encourage the donor to develop the donor’s competence to manage his or her own affairs in relation to his or her property.” 
In my submission that is one of the remarkable features of this bill and is a remarkable amendment to the present Act. It brings to the forefront the obligation even for property powers of attorney to have regard to the well-being of the donor at all times and to encourage the donor to develop competence in the management of his or her own affairs. The stories are legion about lawyers particularly—provincial lawyers often—who become set in their ways. They become so set in their ways—[ 
Interruption 
] as is demonstrated by the heckling from the rather hardened members of the National Party on the other side—that despite the best will in the world they proceed to set up law practices that manage wills and powers of attorney as though they are self-enduring and self-fulfilling functions. 
Law firms in the modern day have policies in place that will enable them to check that their staff are meeting their obligations. The alterations brought about by new section 97A bring to the forefront the fact that at all times the obligation to deal in good faith with property is not the only obligation. The very real obligation is to make sure that the donor’s well-being is at the forefront so much so that he or she is encouraged to gain competence to manage his or her own affairs. 
Last night during the second reading debate I spoke about the ability of mental health patients to still be considered capable of managing aspects of their affairs. New section 97A inserted by clause 10 embodies that principle in very stark reality. 
I conclude speaking on this part in the Committee stage by saying that I consider it a matter of great moment that a bill that deals with property rights and enduring powers of attorney carries that very human requirement to have regard for the donor and to at all times administer the property obligations with a view to encouraging the donors themselves to regain competence so they can manage their own affairs. 
The twilight is nigh for the lawyers who in the past took it upon themselves to have a power of attorney and go off on a tangent often leaving the beneficiaries and donors in the wake unable to respond to or to take issue with what they sensed was wrong but were not able to articulate. 
This bill is a very good amendment to the Protection of Personal and Property Rights Act. It is an amendment that reflects the current thinking of an enlightened Government which reflects the long gestation period that Dr Hutchison referred to before. Emerging from that long gestation is a very finely tuned bill. It was honed out by a very attentive select committee and it has been delivered to a very diligent Minister for consideration by this very very considerate Committee. 
The question was put that the amendments set out on Supplementary Order Paper 145 in the name of the Hon Ruth Dyson to Part 2 be agreed to. 
Amendments agreed to. 
Part 2 as amended agreed to.