Collins Judith: Protection of Personal and Property Rights Amendment Bill — In Committee 
Collins Judith: Protection of Personal and Property Rights Amendment Bill — In Committee 
[Volume:642;Page:11824] 
JUDITH COLLINS (National—Clevedon) 
: 
 Generally the Protection of Personal and Property Rights Amendment Bill is one that I think everyone can agree with but there are a couple of little things I would like to point out. It is not a bill to be taken lightly because obviously powers of attorney—particularly enduring powers of attorney—are incredibly important documents. 
I was re-reading some of the clauses and in particular clause 20 which substitutes section 107 of the principal Act. I noted that attorneys cannot actually benefit from their actions as attorneys in relation to property. That is good except of course if this deals with families where for instance the husband or wife or partner—one of them—is mentally incapable and the other needs to deal with the property that they may jointly own. 
I thought that this was the sort of clause that could trip up people who have an enduring power of attorney and believe they can do what they need to do. It is a measure that will require advice particularly in relation to subsection (1)(c)(i) which states that an attorney may benefit in certain circumstances “if the attorney and donor are married to or in a civil union or de facto relationship”—whatever that means—“with each other and are living together and sharing their incomes”. So in other words if one of them is living in a rest home or a hospital then they are not living together and sharing their incomes. Many of us will know of many married couples de facto partners civil union partners and others who do not actually share their income. So they would not be able to benefit from this provision. They will not be able to use it. 
Paragraph (i) goes on to state the circumstances in which the attorney in such a relationship may benefit as being in “any action taken by the attorney in respect of real or personal property that the donor and the attorney own jointly and not as tenants in common:”. Some people remember how the whole joint tenants and tenants in common issue is used particularly in law. It is one of those things I think that those of us who are lawyers and have practised in this area will understand the ramifications of. But it is the sort of thing that could trip up a very well-intentioned person who happens to have a power of attorney for their partner wife husband or whatever and who thinks they are doing the right thing. They could very easily trip on that issue because they have not had specific legal advice that actually pertained to it. 
The Law Society will need to make sure that lawyers are aware of this issue and also by the way that legal executives are aware of it. It will be incredibly important that we do not have the unintended consequence of people who think they are doing the right being thing caught up by the fact that they are either not living together now—because for example one is in a hospital or a rest home—and not sharing their incomes or they own the property as tenants in common rather than as joint tenants. I think that issue will need to be very carefully looked at. I hope that the New Zealand Law Society and its branches are able to give people some good advice on it and to make sure that their members—the lawyers legal executives and others—are fully aware of this issue. It will be very important for trustee corporations as well when they are giving advice. 
In conclusion the National Party supports the Protection of Personal and Property Rights Amendment Bill; we think it is a good bill. After 19 years of enduring powers of attorney it was time the Act was updated but no doubt we will have to revisit it at some other stage as circumstances change and people’s lifestyles change as well.