Dyson Ruth: Protection of Personal and Property Rights  Amendment Bill — Third Reading 
Dyson Ruth: Protection of Personal and Property Rights  Amendment Bill — Third Reading 
[Volume:642;Page:11970] 
Hon RUTH DYSON (Minister for Senior Citizens) 
: 
 I move  
That the Protection of Personal and Property Rights Amendment Bill be now read a third time 
. This legislation amends Part 9 of the Protection of Personal and Property Rights Act 1988. This part provides for people to appoint attorneys to act for them on personal care and welfare and property matters should they lose mental capacity or the ability to communicate through accident or illness. 
The bill strengthens the provisions relating to enduring powers of attorney or EPAs in order to protect people who by reason of their heath have to rely on other people to make decisions for them on welfare and/or financial matters. More specifically the bill addresses the issues that were first raised by organisations concerned about the abuse of older people—abuse that could be prevented by better provision of safeguards in the legislation. These concerns were identified by the Law Commission in the first instance. The commission undertook consultation and in 2001 proposed changes to Part 9 of the Act. Further consultation was undertaken led by the Office for Senior Citizens in the lead-up to the amendment bill and of course again during the Social Services Committee process. 
Before looking at the specific amendments I would like to emphasise two important themes that underpin this bill. The first is that the interests of the donor are paramount in all aspects and applications of powers of attorneys. The second is that even where a donor loses capacity and the decision-making role is taken over by the attorney the donor still has the right to be consulted and the attorney has a duty to encourage the donor to continue to make decisions as he or she is able. This recognises that being certified as mentally incapable does not mean that a donor does not have a view or is incapable of expressing a view on any aspect of his or her life. 
To help the House understand what this bill achieves I will take the problems identified with the current law and explain what the bill does to address them. To ensure that enduring powers of attorney are not drawn up at the point where people are losing capacity the bill requires that when drawing up an enduring power of attorney the donor’s signature must be witnessed by a lawyer retained independently of the attorney who must explain to the donor the effects and implications of the enduring power of attorney and his or her rights. The witnessing lawyer must also certify that he or she has no reason to believe that the donor lacks mental capacity. Officers of trustee corporations and trained legal executives who work in legal practices can also carry out the witnessing provisions. This process will also allow the donor to express his or her wishes regarding various terms and conditions which will be included in the form of the enduring power of attorney and will prevent external parties with mischief in mind from influencing the terms of the enduring power of attorney in favour of the attorney. 
The implementation of the bill provides the opportunity to revise the forms of enduring powers of attorney so that they are much more helpful and responsive to the needs of people drawing them up. The bill will ensure that donors are provided with the information they need about the powers they are conferring on their attorney and their right to revoke an enduring power of attorney while they are mentally capable. To make this possible for a donor who has lost mental capacity temporarily section 100A inserted by clause 15 now specifically enables a donor to suspend an enduring power of attorney without revoking it. Where there are questions as to the donor’s mental capacity in making such a suspension his or her mental capacity can be determined by a relevant health practitioner. 
The bill includes the presumption of donor competence so that donors are not to be assumed to have lost mental capacity unless this is clearly shown. The way a person may imprudently manage his or her property affairs or make personal care and welfare decisions cannot be used as evidence that the donor has lost that capacity and neither can special patient status under the Mental Health (Compulsory Assessment and Treatment) Act 1992. The bill will require an attorney for property affairs to keep records of each financial transaction for which he or she is responsible as an attorney and provide those records to persons specified for that purpose in the enduring power of attorney. People will be encouraged to identify what accountability arrangements they want to apply once the enduring power of attorney becomes operational. 
It is now made very clear in this bill that attorneys will not be able to make personal care and welfare decisions for a donor unless and until the correct process has been followed. For insignificant personal care and welfare decisions if the attorney believes on reasonable grounds that the donor is mentally incapable he or she is able to exercise the power of attorney. For significant personal care and welfare decisions such as admission to care or relocation there must be a certificate from a health practitioner or a determination of the Family Court that the donor is mentally incapable before the attorney can exercise those powers. An attorney under the enduring power of attorney will not be able to act in property matters unless the donor is medically certified or determined to be mentally incapable except where the attorney was authorised to act in this area when the enduring power of attorney was created. The requirement inserted by the bill that the donor will be consulted applies to all decisions the attorney makes—significant or otherwise. 
Concerns about how to trigger the Family Court’s power to intervene are addressed through three measures. The first is the inclusion of a list of appropriate persons able to access the Family Court in any case without having to obtain leave of the court. This list includes the coordinators of the 25 Elder Abuse and Neglect Prevention services which are funded by our Government to offer assistance in the prevention of abuse of older people. This means that concerns about an attorney’s actions can be more easily brought to the attention of a Family Court so that a donor’s situation can be investigated. The second and also of assistance in situations of misuse of enduring powers of attorney is the wide experience of the Family Court in dealing with complicated matters involving differing views between family members. The third and this is not a matter arising directly from the bill but is certainly relevant is the additional resources that our Government has put into the Elder Abuse and Neglect Prevention services. In Budget 2005 our Government increased funding for these very important services from $842000 a year to $1.5 million ongoing. Elder Abuse and Neglect Prevention services are provided throughout New Zealand by Age Concern and a range of other organisations. These services do a wonderful job of providing assistance to victims of elder abuse including abuse that has arisen from the misuse of enduring powers of attorney. 
I am aware that Age Concern and other service providers are very pleased that this House has recognised the issues of misuse of enduring powers of attorney arising from Part 9 of the Act and they very much welcome the changes that are going through the final stages this evening. In response to the excellent submissions received from Age Concern and other older persons advocacy groups this bill includes a provision for these amendments to be reviewed in 5 years’ time and for a report to be prepared on the effectiveness of these changes and whether further changes are required. 
 Once the passage of the bill is completed there will be 12 months for the changes to be implemented. Implementation will include redrafting the different forms of enduring powers of attorney that are currently in the schedule of the Act as well as the forms to be used for certifying compliance with the new witnessing requirements of the legislation and for medical practitioners to certify mental incapacity. These forms will be prescribed in regulation so that they can accommodate the evolution of legal and medical practices and tests. Other forms and guidelines will ensure that appropriate processes are observed and will be drafted. 
Lastly but by no means least work will be undertaken by the Office for Senior Citizens to ensure that people become aware of the changes and how enduring powers of attorney can be used to prevent difficulties from arising in the future and to address difficulties when they occur. Entering into an enduring power of attorney is a very sensible precaution for New Zealanders to complete at any age. It is not just the prospect of loss of capacity in older age that can bring an enduring power of attorney into play but the possibility of injury illness or disease. It is better for people to make their own decisions about who should protect their interests and represent them than for the courts to be called on to appoint a welfare guardian or property manager using other parts of the Protection of Personal and Property Rights Act. 
I conclude by expressing my appreciation of the thorough and comprehensive consideration that members of the Social Services Committee gave to this bill. Also I acknowledge the huge amount of work that the officials from the Office for Senior Citizens and the rest of the team from the Ministry of Social Development devoted to the passage of this bill and members of other parties who gave support for its progress. I commend this bill to the House.