Turner Judy: Protection of Personal and Property Rights  Amendment Bill — Second Reading 
Text is incorporated into the Bound Volume 
Turner Judy: Protection of Personal and Property Rights  Amendment Bill — Second Reading 
[Sitting date: 11 September 2007. Volume:642;Page:11759. Text is incorporated into the Bound Volume.] 
JUDY TURNER (Deputy Leader—United Future) 
: 
 I stand on behalf of United Future to speak on the second reading of the Protection of Personal and Property Rights Amendment Bill. The intention of this bill has been of course to reduce elder abuse as recommended by the New Zealand Law Commission. On one hand we want to encourage the use of an enduring power of attorney by keeping it simple straightforward and affordable—we want to make sure that it is easily understood by both the donor and his or her appointed attorney—while at the same time we want to ensure that donors are safe from the attorneys using the power vested in them for their own benefit rather than for the benefit of the donors. 
I want to add to the comments of other members of the Social Services Committee who said it had been a pleasant experience working on this bill. We had some fantastic submissions from a wide range of people who were well versed in these kinds of issues with some very very good recommendations. 
One thing that became clear was that for an enduring power of attorney to be safe it is important that both the way the enduring power of attorney is set up and the way it is implemented are enshrined in transparency. One of the things I had not considered prior to this bill was that people can have episodes in their lives where their capacity to act is impaired but can then return to good health and be able to control their own affairs again. There was a lot of talk about the use of appropriate health professionals to determine capacity—particularly mental capacity—and in particular Age Concern New Zealand had quite a bit to say about that in its submission. However this bill also talked about limiting the number of medical examinations that an attorney can request. That number needs to be reasonable to avoid rogue attorneys approaching multiple medical practitioners in search of a particular outcome. 
It is a good thing that we amended what was put to us to now allow experienced legal executives to witness enduring powers of attorney. This is a cost-saving mechanism and one that they are well capable of doing and handling responsibly. We considered a recommendation that attorneys be required to keep financial records of any transactions engaged in during a time when the donor may be incapable of making decisions so that they can be accountable to either the donor or to other family members who may request to see an account of expenditure. 
A number of issues raised by submitters showed how complex these enduring powers of attorney can be. I think the National member Judith Collins made some reference to that and to the fact that quite possibly this might not be the end of this issue. This is one of those matters that I think is well overdue for the amending that we are looking to put through at present. I imagine that it will need to bed down over time and then we will see what else may need to be done if other holes and gaps develop. 
But let me just tell members some of the interesting things that came out in submissions that this bill may not completely cover yet and we may need to consider in the future. One of the concerns was that particularly dementia sufferers could be signed on to participate in research by those who are attorneys on their behalf. There were questions as to whether they should have the right to enrol in research projects the people they were caring for. 
There were concerns about what would happen if there were a divorce or separation and the ex-partner had an enduring power of attorney; how would that be managed in a divorce or separation situation? How was competence decided and how does one differentiate between permanent loss of capacity and partial or temporary loss? What is the trigger for partial capacity? How does one determine when an attorney should then trigger the powers he or she has been given and when does the attorney need to pull back? How do we define a significant decision? There are a number of references in this amendment to the ability of an attorney to jump in and make decisions of a significant nature and of an insignificant nature. How do we determine what those two are defined as? 
There was also some very interesting work from the New Zealand Law Society. The society talked about the need to perhaps standardise the documentation and it made a recommendation to keep it simple. There were some concerns that if we allow this process to become too complicated it will become off-putting. People would be less inclined to set up an enduring power of attorney and would walk away from the process considering it too complex. So there was some discussion from certain submitters about how to keep the process safe but simple. 
One of the other issues that was talked about was the fact that many trusts—particularly family trusts—have in place gifting programmes. What is the role of a person with power of attorney to maintain those gifting programmes or to oversee those gifting programmes from a family trust when he or she has taken over being a spokesperson for the donor who is incapacitated? 
A huge number of issues are thrown up when we look at this type of situation. United Future is very happy to support the second reading and we think some good progress has been made around this issue but I signal that some very interesting issues were brought up by submitters that may not have been fully addressed in this bill and may need revisiting. I think however that it is a wise move to do what we are doing to date. We should let that settle down and see where we go from here.