Fairbrother Russell: Protection of Personal and Property Rights  Amendment Bill — Second Reading 
Text is incorporated into the Bound Volume 
Fairbrother Russell: Protection of Personal and Property Rights  Amendment Bill — Second Reading 
[Sitting date: 11 September 2007. Volume:642;Page:11753. Text is incorporated into the Bound Volume.] 
RUSSELL FAIRBROTHER (Labour) 
: 
 It is my pleasure to follow the previous speaker who was the deputy chair of the Social Services Committee. I assumed the chairmanship midway through the consideration of the Protection of Personal and Property Rights Amendment Bill and I agree with Judith Collins when she said she did not doubt that this amendment would need to be looked at again in the next 20 years. The reason I agree with her is that this amendment bill is amazingly important legislation. It is a bill that people may pick up and when they see “enduring powers of attorney” and “protection of personal and property rights” tend to yawn. But in my view it is more important legislation than that relating to wills because when one sets a will the circumstances under which the will becomes operative are crystal clear: the person is dead and his or her wishes have to be carried out entirely by the administrators of the will. With an enduring power of attorney the situation is a lot more complex because the person is always alive and he or she may be in different states of capacity. To operate a power of attorney requires finesse and flexibility so that there is an even flow between the wishes of the donor and of the person who holds the power of attorney. For a lawyer or the holder of a power of attorney this is a difficult area to operate in just as it is a difficult area for a donor to operate in when making the decisions. 
There are many many parts of this bill that I would like to speak to tonight but in the time available to me I want to move to the provisions in new section 93B inserted by clause 6. Those are the presumption of competence provisions that build on the amendments to the principal Act set out in clause 7. The provisions inserted by clause 7 move away from the stage when all those who were unwell or incapacitated became institutionalised. In today’s world people are institutionalised only in very rare circumstances. The amendments in clause 7 bring the law up to date and deal with people in rest home care in hospital care and in facilities within the meaning of the Health and Disability Services (Safety) Act 2001. 
I come back to the presumption of competence. The amendments proposed in this bill are based on the assumption that the donor’s wishes are the rational wishes of the donor even though those wishes may seem to be at odds with what the person who is operating the power of attorney would do. Of course that is probably the most significant difference between the administrator of a deceased’s estate and the administrator of a living person who has limited capacity. So we see that new section 93B(1) inserted by clause 6 states: “For the purposes of this Part every person is presumed until the contrary is shown—(a) to be competent to manage his or her own affairs in relation to his or her property: (b) to have the capacity—(i) to understand the nature of decisions about matters relating to his or her personal care and welfare; and (ii) to foresee the consequences of decisions about matters relating to his or her personal care and welfare or of any failure to make such decisions; and (iii) to communicate decisions about those matters.” New subsection (2) states: “A person must not be presumed to lack the competence described in subsection (1)(a) just because the person manages or intends to manage his or her own affairs in relation to his or her property in a manner that a person exercising ordinary prudence would not adopt in the same circumstances.” 
There are further developments of that thought in subsections (3) and (4) of new section 93B. Subsection (4) particularly deals with mental health patients and it makes it quite clear that “just because the person is subject to compulsory treatment or has special patient status under the Mental Health (Compulsory Assessment and Treatment) Act 1992” that does not take away the presumption of competence. I am familiar with a number of people who are subject to mental health orders and who need interventions in their mental health but the interventions are limited to stabilising their health and they are otherwise capable of making rational and clear decisions. 
This is an amendment for the year 2007. It is in keeping with current thought in this area and it reflects the importance of the power of attorney. Powers of attorney are not matters to be taken for granted either when they are signed or when they are executed and they do reflect the wishes of a living person. I am delighted that in this amending legislation we have a very clear statement of the presumption of competence which allows people to do many things in different ways and in their own ways that are peculiar to those people even though an objective observer may disagree and may not think they are entirely prudent. That is the way of the world that is the way that people choose to live their lives and that is the way that should be reflected if people come under the ambit of the enduring power of attorney legislation. 
So I think this bill is enlightened legislation which brings the role of powers of attorney as I say into the 21st century. I look forward to the fact that it may be amended fairly regularly hereafter as we become more and more enlightened about the situation of older people and mentally disabled people in our community.