Donnelly Brian: Protection of Personal and Property Rights  Amendment Bill — First Reading 
Donnelly Brian: Protection of Personal and Property Rights  Amendment Bill — First Reading 
[Volume:636;Page:7039] 
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.