Dyson Ruth: Protection of Personal and Property Rights  Amendment Bill — First Reading 
Dyson Ruth: Protection of Personal and Property Rights  Amendment Bill — First Reading 
[Volume:636;Page:7035] 
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.