Protection of Personal and Property Rights  Amendment Bill — First Reading 
Protection of Personal and Property Rights  Amendment Bill — First Reading 
[Volume:636;Page:7035] 
Protection of Personal and Property Rights  Amendment Bill 
First Reading 
Hon RUTH DYSON (Minister for Senior Citizens) 
: 
 I move  
That the Protection of Personal and Property Rights Amendment Bill be now read a first time. 
 At the appropriate time I intend to move that the bill be referred to the Social Services Committee. This bill amends Part 9 of the Protection of Personal and Property Rights Act 1988. 
 Our Government has identified elder abuse and neglect as one of five critical social issues for priority inter-agency action over the coming years. This bill is designed to prevent the abuse and neglect of older people through the misuse of enduring powers of attorney. It strengthens the provisions relating to enduring powers of attorney so that the welfare and rights of vulnerable people are better protected. The bill is based on the principle that their welfare and interests should be the first and paramount consideration. 
The purpose of the enduring power of attorney provisions is to allow mentally capable adults to make private arrangements for their personal care and welfare and for the management of their property affairs in the event that they lose the capacity to look after those matters themselves. An enduring power of attorney is a document signed by both a donor and an attorney. The donor grants the power to the attorney. A personal care and welfare enduring power of attorney is usually a family member or friend. An enduring power of attorney is based on the donor’s trust that the attorney will carry out the wishes of the donor and keep his or her welfare and interests paramount. 
Setting up an enduring power of attorney is relatively straightforward and people often do this at the same time that they make their wills. It is a private arrangement that maintains and promotes the autonomy of the donor by ensuring the donor’s wishes are carried out when unable to make decisions for himself or herself. In the absence of an established enduring power of attorney the Family Court can appoint a welfare guardian or a property manager. However court-appointed welfare guardians and property managers are less likely to know a donor’s express wishes in terms of managing his or her care and welfare or assets and income. 
In 2001 the New Zealand Law Commission published a report on the misuse of enduring powers of attorney. The Law Commission found that a significant majority of attorneys act judiciously and honestly under the current enduring power of attorney provisions but that these provisions have not prevented or deterred unscrupulous attorneys from abusing or misusing their authority. The Law Commission identified many ways that attorneys can misuse their powers. These included neglect of the donor embezzlement bullying and failure to consult. The commission also identified abuses in relation to the initial granting of an enduring power of attorney such as the donor feeling under duress the failure to explain the implications of the powers given to the attorney or an enduring power of attorney being entered into when the donor had already lost the capacity to understand what he or she was signing. 
This bill will tighten requirements around the creation of an enduring power of attorney clarify the process of activating an enduring power of attorney tighten provisions relating to gifting in the context of an enduring power of attorney and provide easier access to the courts for anyone with concerns about an attorney’s actions. This bill requires that every new enduring power of attorney is witnessed by somebody who has been appointed by the donor independently of the attorney and is a lawyer or specifically authorised officer of a trustee corporation. The witness must also certify that the effect and implications of the enduring power of attorney have been explained to the donor independently of the attorney before he or she signs. In many cases donors are still capable of meaningfully contributing to day-to-day decisions about their personal care welfare and property and they should be encouraged to do so. 
This bill explicitly states that an attorney must act in the donor’s best interests and attorneys are obligated to consult with the donor and other persons identified by the donor where practicable. Attorneys are to encourage donors to make any decisions about their personal care and welfare or property affairs that they are capable of making. 
This bill makes several changes relating to the assessment of mental incapacity and when an attorney can act under an enduring power of attorney. First it inserts a presumption of competence to make Part 9 of the Act consistent with the other parts dealing with the appointment of property managers and welfare guardians. Second the bill amends the threshold of “mentally incapable” applicable to personal care and welfare enduring powers of attorney to remove the uncertainty around this definition. Third the bill amends the Act to provide that in certain matters attorneys can act only where a relevant health practitioner has certified that the donor is mentally incapable. For a personal care and welfare attorney this relates only to significant life decisions. This change will prevent premature and inappropriate activation of enduring powers of attorney. 
Misuse of an enduring power of attorney has often involved exploitation of section 107 of the Act which currently allows attorneys to act for the benefit of themselves or persons other than the donor if the donor might be expected to provide for the needs of the attorney or those other persons. Misuse can occur when an attorney assumes either honestly or dishonestly that the donor would have made greater provision than the donor actually intended. Attorneys can also misuse their powers by recovering excessive expenses or by loaning money to themselves or to others. When an attorney misuses the gifting cost recovery or benefiting powers through embezzlement mismanagement or fraud this can cause considerable financial and personal harm to the donor. 
This bill replaces section 107 with a new provision that prevents an attorney from benefiting themselves or others who are recovering expenses or making loans of the donor’s property unless this has been explicitly specified by the donor or authorised by the Family Court. This new provision will require donors to make their intentions clear about a number of matters including their future gifting wishes before signing an enduring power of attorney. Having the donor’s specific wishes and intentions documented will make it easier for attorneys to be clear about their obligations and any restrictions on their behaviour. Should an attorney’s actions be challenged by a third party it will be easier to identify any deviation from the donor’s authority. This new section will apply only to enduring powers of attorney made after the bill becomes law. 
The bill extends the list of people who can apply to the Family Court without leave to include a range of third parties like social workers medical practitioners and relatives. If a person has concerns about actions under an enduring power of attorney an application form will be prescribed under Family Court rules to invoke the jurisdiction of the court. Any application made on the form will trigger existing provisions in the Act which include the court appointing a lawyer to act for the donor. 
Vulnerable older people require protection under the law and deserve that protection. The law should as far as practicable prevent abuse and present opportunities for redress. These legislative amendments will help to ensure that vulnerable older people and disabled people have greater protections under the law in relation to establishing enduring powers of attorney that donors’ wishes are carried out and that their personal care and welfare is safeguarded. I commend this bill to the House. 
KATE WILKINSON (National) 
: 
 In speaking to this Protection of Personal and Property Rights Amendment Bill which in the industry is referred to colloquially as the Triple PR Act I think it is interesting to backtrack as to why the principal Act was originally enacted in 1998. 
The Protection of Personal and Property Rights Act basically provides for enduring powers of attorney to be given in relation both to property and to personal care and welfare. Before that Act powers of attorney could be granted but not enduring ones. In other words a general power of attorney would be limited to the extent that the attorney could do only what the donor could do. The general law of agency is that an agent may not have powers greater than those of the agent’s principal. The difficulty with this was that if the donor lost the mental ability and therefore ceased to have the capacity to perform the delegated acts—sign documents etc.—then the attorney’s powers also came to an end. This would mean for example that the power of attorney given by an elderly person may effectively cease in the very situation in which it is needed. 
The Protection of Personal and Property Rights Act was born enabling the power of attorney to continue notwithstanding the donor’s capacity. Enduring powers of attorney as we have stated can now be granted in two situations—for personal care and welfare in which case only one attorney is appointed and for property for which one or more attorneys can be appointed. Of course any enduring power of attorney can be revoked by the donor but obviously only as long as the donor has the mental capacity to do so. 
If no power of attorney is granted and a person becomes unable to manage his or her own affairs then an application to the court for a manager or a welfare guardian to be appointed is required obviously at additional cost and delay. So prudently enduring powers of attorney would be granted at minimal cost. This does not relate just to vulnerable elderly persons. Any one of us could have a car accident or lose capacity even temporarily and an enduring power of attorney enables the affairs of that person to be continued throughout such incapacity. So enduring powers of attorney are not tools just for the elderly. 
It is also important to appreciate that under a power of attorney the attorney can do anything the donor can or could do. So he or she can mortgage property sell the family home make decisions as to personal care borrow money and spend money. The powers are wide ranging and the choice of attorney no matter what protections have been put in place under this bill is still vital. The attorney must be someone who is trusted. Most can be trusted but unfortunately some cannot. 
The Minister the Hon Ruth Dyson has referred to the Law Commission report of 2001 entitled  
Misuse of Enduring Powers of Attorney 
. That paper referred to an absence of effective safeguards. Some of the problems that have been addressed in this bill and which were included in that report include that there is no monitoring of whether on signing the power of attorney the donor has the capacity to understand the effect of what was signed. There is no requirement for independent legal advice. There is no machinery to ensure that the donor is informed of the donor’s right of revocation. There is no requirement to file accounts and no independent monitoring of the acts of the attorney. There is no monitoring of the classification of a donor as mentally incapable which triggers the personal care and welfare powers and also can trigger the powers to act under a properly enduring power of attorney if so worded. The problems also include the powers of the Family Court to intervene and the understandable reluctance by donors to take court proceedings against children or other family members who have misused their powers. 
There is no doubt that some abuse of enduring powers of attorney has occurred especially with vulnerable elderly persons. They can be taken advantage of—sometimes by their own family—but we must remember that this bill is to protect any vulnerable person not just the elderly. It is important that any vulnerable person young or old who does not have mental capacity has the confidence that he or she is being protected and looked after by the law as much as is reasonably and practicably possible. 
As the commission reports a deed granting an enduring power of attorney is valid only if the donor understands what he or she is signing. Accordingly the bill prescribes how an enduring power of attorney should be created. It must now not only be in the prescribed form but be certified by a witness who must be independent of the donor and be a lawyer or an officer or employee of a trustee corporation. Previously anyone could be a witness. 
The signature of the attorney must be witnessed by a person other than the donor’s witness so we have two witnesses now as opposed to previously having one. The onus on the witness is harder because the witness must certify that he or she has no reason to suspect that the donor was mentally incapable at the time the enduring power of attorney was executed and signed. This will or may add to the cost of an enduring power of attorney but it certainly is a prudent step to ensure that the enduring power of attorney was properly and validly created in the first place. 
The bill makes some changes and additions to the interpretation of when a donor is mentally incapable by stating in new section 94(1) in clause 7 that “the donor of an enduring power of attorney is mentally incapable in relation to property if the donor is not wholly competent to manage his or her own affairs in relation to his or her own property.” In relation to personal care and welfare new section 94(2) states that a person “is mentally incapable … if the donor … (a) lacks the capacity—(i) to make a decision about a matter relating to his or her personal care and welfare; or (ii) to understand the nature of decisions about matters relating to his or her personal care and welfare; or (iii) to foresee the consequences of decisions about matters relating to his or her personal care and welfare …; or (b) wholly lacks the capacity to communicate decisions about matters relating to his or her personal care and welfare.” 
Enduring powers of attorney in relation to property can be expressed to take effect only in the event of mental incapacity or they can take effect from the date of signing. Enduring powers of attorney in relation to personal care and welfare however do not have that option and take effect for obvious reasons only in the event of mental incapacity. 
It is important that there is some objective test of mental capacity and the requirement in the bill for a relevant health practitioner to certify such lack of mental capacity before an attorney may act for a donor is a sensible protection for both the donor and also the attorney. There is a common-sense exception to this as has been mentioned by the Minister relating to personal care and welfare matters that are not significant. 
There is one other issue I would like to highlight and that is in relation to the power of attorney to be able to make gifts. Clause 16 basically enables the court to “authorise the attorney to make any loan or advance of the donor’s property subject to any conditions that the Court considers appropriate:”. The issue I have which I hope will be discussed at select committee is whether the attorney can continue regular gifting in accordance with normal estate planning asset protection gifting programmes. 
We all know that it is common practice for a variety of reasons for say a family home to be transferred to a family trust. It is effectively sold to that trust at its market value and the purchase price is lent to the trust to be reduced year by year at the rate of $27000 per 12 months that being the maximum amount allowable before gift duty is payable. There is uncertainty as to whether that gifting can be continued by an attorney and whether it should be able to be continued without the necessity of a court order if it is part of the regular gifting programme. This is an issue that I would like submitters and the select committee to consider from a practical pragmatic point of view. 
Many issues relating to enduring powers of attorney arise after a donor’s mental capacity has gone and the family is often left to decide what is in the best interests of that donor and what he or she would have wanted. In many circumstances the families themselves cannot agree—they disagree—and although applications to the court to try to resolve such disagreements are an option it is an expensive one. 
A common problem as highlighted by the Law Commission’s report is that of disputes between a child appointed as attorney and siblings of that child who are not appointed as attorney. As the report states: “Enduring powers of attorney (like wills) do not always bring out the best in people.” How we avoid that is difficult and not specifically addressed in the bill. 
Another problem highlighted is the high-handedness or bossiness in a failure by an attorney to ascertain the wishes of the donor—for example by selling the home of an institutionalised donor against the wishes and sometimes without even the knowledge of the donor. Although limiting the powers of attorney in such cases may be seen as an option it would be at the expense of often needed flexibility. At the end of the day an attorney who is appointed by anyone must be someone whom the donor absolutely trusts. The choice of attorney is vital. 
This bill follows many of the Law Commission’s recommendations. It addresses some of the concerns in relation to the misuse or abuse of enduring powers of attorney. National supports the bill. 
GEORGINA BEYER (Labour) 
: 
 I am pleased to take a brief call on the Protection of Personal and Property Rights Amendment Bill. I think this is a fantastic bill to support and so soon after the first reading yesterday of New Zealand First’s Social Security (Entitlement Cards) Amendment Bill which also honoured elderly people in this country. I chair the Social Services Committee and I take on board the comments from the member who just resumed her seat Kate Wilkinson. I am certain that with the talent that lies around that table—particularly on the Labour side—the bill will be scrutinised most appropriately and well by all involved in that process. Therefore I shall not tarry any longer. I say only that I hope support is found fully around the House. 
Hon BRIAN DONNELLY (NZ First) 
: 
 I think people in the House know—and the previous speaker mentioned it—that New Zealand First has always acted very strongly and vigorously in defence of the most vulnerable within our society. We have a proud record of implementing policies and legislation that relate particularly to the elderly—and not just to the elderly but in a larger view to the vulnerable within our society. An enduring power of attorney does not obviously apply only to the elderly but the elderly are the main utilisers of the mechanism. As the Law Commission discussion paper of 2000 stated quite clearly the law needs machinery to enable decisions to be made on behalf of those unable to manage their own financial affairs or to look after themselves properly. 
People have mentioned the Law Commission document that was put out in 2001 following the discussion paper but it has not been mentioned that that document was triggered by a case put by Age Concern Auckland Inc. which believed that there was a lack of protection under the existing statute—that is Part 9 “Enduring powers of attorney” of the Protection of Personal and Property Rights Act 1988. I make the point that Part 9 as the discussion paper makes explicit was not part of the original legislation in 1988. It was something of an afterthought and was inserted into the bill at the select committee stage. An opportunity for public submissions on the proposed addition to the bill was provided and Part 9 replaced and expanded upon the Aged and Infirm Persons Protection Act of 1912. 
What came through to the Law Commission when it looked at the situation was that there are some problems with the Act as it currently stands and that the Act does not necessarily provide the degree of protection and the safeguard of the law to the people who require them. I guess what this bill shows is that we are responding to the Law Commission’s findings. I must admit that this very cute phrase is used in the report: “The Law Commission does not believe that every child appointed an attorney is a potential Goneril or Regan.” Those people with some Shakespearean knowledge will understand what that refers to and given that the author of it is a certain person by the name of David Baragwanath I can understand why that phrase has been inserted. 
What we do know is that the enduring power of attorney system has a lack of safeguards and that it provides opportunities for misuse. Experience within New Zealand points to a degree of frequency of economic exploitation of the aged through the misuse of this mechanism. Age Concern Auckland compiled and examined 130 case studies of elderly abuse in respect of a 2-year period. Of those 130 cases of elderly abuse 40 were attributable to the misuse of an enduring power of attorney. I do not believe that anybody in this House would consider that to be an acceptable proportion of misuse of the legislation as it currently stands. 
So pretty obviously New Zealand First will be supporting this bill. In fact we congratulate the Minister on the work that has been put in to do something about this fragility we have within our legal framework. I will run through a few of the things that we support in this legislation. We believe that the bill remedies many of the deficiencies in the drafting of Part 9 of the legislation back in 1988 and that will make that part more consistent with the other provisions of the Act that provide better protections to people whose mental incapacity means they require protection. 
Some of the new provisions are a legislative presumption of the donor’s competence and a requirement that it be made explicit that attorneys must act in the donor’s best interests and must consult with and/or provide information to the donor and others specified by the donor on the creation of the enduring power of attorney. Attorneys are also required as far as practicable in the circumstances to encourage donors to exercise such competence as the donor has in relation to his or her own personal care and welfare or property affairs. A purpose statement will be inserted in Part 9 of the Act that will really clarify the role of the attorney as providing support to the donor when requested. There is also a range of other provisions that we believe will strengthen mechanisms around the protection of assets for those who are infirm. 
Therefore without any further ado I say that New Zealand First will support this bill. Obviously the select committee will look at the details but as a lot of work has already gone into this bill from the Law Commission and from others who really have their heads around the issue we do not believe that the select committee will need to make a whole lot of changes at this point in time. 
Dr PITA SHARPLES (Co-Leader—Maori Party) 
: 
 I find it a little strange that we can be focusing on a bill for the protection of personal and property rights when just over a week ago our Government supported a delaying motion at the United Nations on the Declaration on the Rights of Indigenous Peoples. This was no ordinary declaration. This was a declaration for the protection of the personal and property rights of indigenous people. It was a declaration to affirm the fundamental human rights of the most politically economically socially and culturally marginalised people in the world—indigenous peoples. It was a declaration that took 20 years to reach a resolution which this Government took great joy in unwinding. 
In the very early days of hui around this declaration a delegation including NganekoMinhinnick the late Alec Kaihau Aroha Kaihau Joe Williams Hinewhare Harawira and Aroha Mead attended the United Nations working group on indigenous peoples on the relationship between indigenous peoples and states. They were party to statements about dispute resolution and about protection of indigenous nations’ personal rights. At the same time that those early discussions were being held here in Aotearoa the Protection of Personal and Property Rights Act 1988 was passed to allow decisions to be made on behalf of those unable to manage their own affairs or properly look after themselves. It is ironic then that our own Government can be so quick to strengthen legislation to protect vulnerable people while denying Maori the fundamental human rights guaranteed to all other people by not supporting the United Nations declaration to affirm the fundamental human rights of indigenous peoples. 
This Protection of Personal and Property Rights Amendment Bill puts into place the recommendations from the Law Commission’s 2001 report  
Misuse of Enduring Powers of Attorney 
 to provide for the protection of the personal and property rights of people who are not fully able to manage their own affairs. It aims to get lawyers to act in their clients’ best interests. We hope that the proposals of the Law Commission will ensure caution against abuses in the granting of power of attorney and abuses such as high-handedness bullying failure to consult—such as when a lawyer sells a client’s home without the client’s knowledge—and embezzlement and theft. The abuse of the powers of attorney takes place within a relationship of trust and the Maori Party believes that that must never be tolerated. 
Behaviour like this—the exploitation material and financial abuse of vulnerable people —is an infringement of human rights. It is behaviour that breaches the code of conduct one expects of a socially responsible society. Indeed it is an abuse of power not unlike what this Government has done in its political manoeuvring at the United Nations: abuse condemned by indigenous peoples around the globe abuse condemned by organisations such as Amnesty International abuse that has resulted in the Declaration on the Rights of Indigenous Peoples being delayed perhaps indefinitely. 
This bill pays particular attention to the vulnerabilities of the elderly their welfare and their rights and the harmful physical psychological sexual material financial or social damage caused by the behaviour of someone they trust. When the Law Commission consulted for its 2001 report it sought wide involvement from older people and their organisations because it saw that elderly people’s welfare and interests should be a paramount consideration in this bill. 
As part of that consultation process the Law Commission recommended the creation of a commissioner for the aged—a person chosen to champion the needs of the elderly throughout Aotearoa. Yesterday we talked about the Parliamentary Commissioner for the Environment we talked about the appointment of a new Police Complaints Authority and we made reference to the commissioner for children. In the same vein we also see the importance of now considering a commissioner for the aged one who understands the special needs and dreams of kaumatua and kuia as well. We will be supporting this bill. 
JUDY TURNER (United Future) 
: 
 I stand on behalf of United Future to speak to the Protection of Personal and Property Rights Amendment Bill. We are very keen to see this bill go to the select committee and I congratulate the Minister Ruth Dyson on introducing it. Certainly in the 4 years I have been in Parliament I have received on a number of occasions very very concerning letters from concerned family members mostly and some from senior citizens themselves who have got themselves into some awkward legal arrangements and are not completely clear about their rights. 
In preparation for this opportunity to speak this afternoon I looked at the website of Age Concern New Zealand. I commend Age Concern and Grey Power for the work that they do with their members in trying to give good advice to people who are considering these matters. I think that perhaps the most telling piece of information I got from Age Concern’s website was the advice that they give to elderly people who are considering forming trusts or giving a power of attorney to someone. Age Concern’s website advises people to ask themselves some questions and gives a list of nine questions. The very nature of those questions highlights the complexities that this bill needs to seek to address. 
The first question the website asks is: “Do you have absolute trust that the person you are appointing as attorney will always act in your best interests?”. That asks people to consider the character of the person. I could also add information on people who feel pressured by a family member to sign a power of attorney over to them. Often family members contest with each other to be appointed to that position. Another question is: “Will you appoint one attorney or two or more? Or will you appoint a trustee company?”. That explains that there are a range of options. Sometimes—particularly if someone has been put under pressure by people touting themselves as being concerned for that person’s welfare—he or she may not understand the range of options that are available. I think it is really important that people who are considering these things know there are some really good options available. 
The fifth question on the website is: “Do you want to give your attorney authority to take care of everything to do with your personal care and welfare or only some things?”. Again some people have had the misunderstanding that by signing legal documents they have literally given away all rights to all decisions on all matters. That question relates to developing an understanding ahead of time when one is discussing the matter with somebody who is going to have that legal authority and making it very clear to that person exactly what one is signing over and not signing over so that everybody involved in the arrangement is very clear on that. The eighth question is: “Do you want to give your attorney authority to take charge of all your money and property or only some things?”. The website asks people to think about whether they want a separate arrangement for the person who is able to take care of their property from the arrangements regarding personal care. One suggestion I read is that one should have two people with a power of attorney: one person to deal with one’s assets and property and one person to deal with one’s personal care so that the two never become confused in somebody’s mind—particularly if he or she stands to gain from any decisions that are made. 
Another of the questions asks what steps for instance people want to have taken to determine their mental capacity before their attorney can act. Some very good guidelines are given by Age Concern as to the kinds of things one can insist on about who can determine that one’s mental capacity has deteriorated to a point where somebody needs to step in and take over making decisions on one’s behalf. For instance does one want one’s attorney to be monitored and supported in his or her role? Or does one let that person become a law unto himself or herself? To whom is an attorney accountable outside his or her own counsel? 
One of the other questions Age Concern asks is: “If you have an enduring power of attorney already have you checked to see that still meets your needs?”. It is a very similar situation to appointing people as guardians for one’s children. When my husband and I had a young family one of the best bits of advice we were given on that matter was that as our children grew and the relationships we had with different people changed and adjusted over time we needed to revisit that decision every now and then. The people who may make appropriate guardians should a crisis happen when one’s children are very little may not be appropriate once one’s children have hit their teenage years so we need to review those decisions. So it is with this kind of decision. Over a period of say 10 years one’s relationships may change to such an extent that change is required. Often people are unaware that they have the ability to go in and make those kinds of changes. This is another area raised by Age Concern that I would like to see discussed in light of this bill. 
The final question was: “Have you consulted your own lawyer to ensure you have independent advice?”. It is not uncommon when family members are arranging matters such as this for a family member to say “Look Mum come and see my lawyer down the road. I’ve got to get a property thing settled—we’ll throw that in on the bill and we’ll get my lawyer to check that everything you’re signing over to me is kosher.” The advice here is no no no—one should have one’s own independent lawyer to make sure that the advice one gets is unbiased and is all about protecting one’s best interests on every aspect of what is being covered by the power of attorney. 
United Future thinks this is a very timely bill. As I said at the beginning I congratulate the Minister on introducing it. I am pleased to be on the select committee that it will be sent to. I will be taking an active interest in its development and I certainly look forward to the submission process regarding some of the issues I have raised in the House today. I look forward to the passage of this legislation. 
NANDOR TANCZOS (Green) 
: 
 I rise on behalf of the Green Party to give a fairly short speech on the Protection of Personal and Property Rights Amendment Bill. It will be a short speech for two reasons. One is that the matters addressed in the bill are not ones that I have an enormous amount of familiarity with and in that regard the Green Party members can do no better than to base our decision on the fact that the bill is based on recommendations of the Law Commission in its report  
Misuse of Enduring Powers of Attorney 
. I think that is a very good basis on which to make a decision to at least support the bill going to a select committee where the technical matters of working through the bill and making sure that it all works as intended can actually be thoroughly investigated based on public submissions. Of course members of the House have already spoken on many of the issues and I thank members for very informative contributions around the current law and some of the problems and the facts in relation to abuse of elderly people around the matter of enduring powers of attorney. 
 I would also like to say just before getting into the bill itself that it is good to see another example of the recommendations of the Law Commission being picked up by the Government turned into legislation and put before this House. Just today at the Justice and Electoral Committee where we were doing the financial review of the Law Commission the matter arose once again as it has numerous times at that committee that the important law reform work the Law Commission does is often not picked up. It can be allowed to languish for many years sometimes to the extent that significant work has to be done to bring it up to date because by the time we get around to considering it many years have passed and matters have moved on. 
That is particularly true in relation to bills of this nature that are not political bills. There is no politics in this bill; there is nothing to be gained by creating public outrage or disgust or by trying to generate politics around it. This bill is simply about our responsibility as parliamentarians to ensure that the law works properly. Of course it is exactly that matter that the Law Commission has been set up to address. It is exactly what it addresses for the most part in its reports—simple black-letter law reform issues. So it is good to see that these matters are being picked up and made into legislation because that kind of work is for the betterment of the country and everyone and has no political spin-offs for us in here. So I am pleased that we are doing this work. It is important work that has enormous implications for many many people. 
I turn now to the bill itself. It introduces a number of positive amendments. One of the things that seems the most straightforward in some ways is simply the adding of a purpose clause to ensure that the purposes of granting an enduring power of attorney to another person are laid out clearly. That is useful because it simply states what that provision is about and gives us a bit of a yardstick against which to measure the performance of people who have been given that power. As members have indicated it is an extensive power that leaves people who are often in a vulnerable situation entirely at the mercy of the good will of the people who have those powers. I am sure that by and large those people do a very good job but there is no doubt at all from the evidence that has already been presented in the House that significant problems can arise. So it is a useful provision. 
New section 93B in clause 6 talks about the presumption of competence. I think that is a positive thing because it states: “For the purposes of this Part every person is presumed until the contrary is shown to have the capacity—(a) to understand the nature and to foresee the consequences of decisions …” and “(b) to communicate decisions …”. That is important because it is in recognition of the inherent dignity of people that we make that assumption but nevertheless if the contrary is proved then of course the provisions of the bill come into play. 
Another matter I want to turn to is new section 99A in clause 14 because it talks about an attorney’s duty to consult. It states: “(1) When acting under an enduring power of attorney the attorney must as far as is practicable consult—(a) the donor; and (b) any other person specified in the enduring power of attorney to be consulted whether in respect of a particular matter or generally.” It also states that the attorney may follow any advice given and is not liable for anything done or admitted in following that advice. Of course if people feel that that advice conflicts with their duty the law or it exposes them to liability or is objectionable or conflicting then they can seek direction from a court. That is good as well. It is simply ensuring once again that the donor is at least in a position to give his or her views and that can then be tested against those matters I have outlined. Again I think this is about the inherent dignity of people and the right of people to have autonomy as far as possible in dealing with their affairs. 
I also want to touch on new section 99B “Attorney must provide information on the exercise of powers”. It states: “An attorney must promptly comply with any request for information relating to the exercise of the attorney’s powers under the enduring power of attorney if—(a) the person requesting the information is specified … as a person to be provided with such information …” and “(b) the information requested is the kind of information specified …”. 
I raise that matter about information because I was recently speaking with someone whom I know and I will be very careful not to make any statements that might identify the people involved in this case. It arose around some real concerns about the use of an enduring power of attorney that has been bestowed on a person in respect of that person’s mother. It seems that the person with the enduring power of attorney has been using the bank account and the assets of the mother to go out and spend up large. Banking records show that that person has been making payments at the post shop which seem to have been to pay the power bill. They do not live together so there seems to be no justification for that. There are records from diamond shops and all kinds of gift shops. There is a pretty strong argument to be made or at least one can make the presumption that these things need to be looked at and some information needs to be provided. It looks like there is very possibly a serious misuse of those assets. 
The other thing is that the mother’s bill in relation to her rest home is not being paid. I thought that was extraordinary. I would have thought the person would pay the mother’s bills so that at least he or she would not get found out. But then I was told that apparently everyone thought the mother was not going to live long that she was going to go into a rest home and would be dead within a couple of weeks so no one would notice the spending. That has not been the case. She seems to have recovered. She is a sprightly woman. She is talking and she is engaged in life because she has moved closer to her family and that has brought new life back to her. So now suddenly the whole thing is starting to unravel. 
It brought home to me on a personal level the very real need for some increased protections around these matters for increased transparency to ensure that information can be demanded and will be provided around the decisions that the attorney is making for clarification of what the purpose of the exercise of those powers are and to avoid those liberties that are being taken at least in regard to some of the elderly members of our community who certainly deserve our protection as well as our respect. I am very pleased to see this bill before Parliament. The Green Party is pleased to support it. I am looking forward to working through it in more detail at the select committee. Again I am particularly pleased the Government is picking up this law reform work done by the Law Commission. There is no politics involved and no personal interest for us it is simply about ensuring that we fulfil our responsibilities as good parliamentarians. 
Bill read a first time. 
Bill referred to the Social Services Committee.referred to Social Services Committee