Fairbrother Russell: Protection of Personal and Property Rights  Amendment Bill — Third Reading 
Fairbrother Russell: Protection of Personal and Property Rights  Amendment Bill — Third Reading 
[Volume:642;Page:11973] 
RUSSELL FAIRBROTHER (Labour) 
: 
 I too want to reflect the compliments made by the Minister for Senior Citizens Ruth Dyson in her third reading speech to the officials who assisted the Social Services Committee and also to the committee members who worked collaboratively on what was seen as a common desire to tackle some of the problems inherent in enduring powers of attorney. 
I do not think it would be overstating the case too much if I said that enduring powers of attorney are subject to misuse such as embezzlement. It is not overstating the case because that is the exact word used by the  
Laws of New Zealand 
 on the subject at paragraph 162. The instances of attorneys helping themselves to the donor’s belongings and failing to put people into institutions and failing to get them out of institutions are catalogued in the  
Laws of New Zealand 
 as they are in the case law. I commend to the House an excellent article in last week’s issue of  
New Zealand Lawyer 
 written by Maria Kaszmierow a barrister who summarises the changes in the enduring power of attorney and I think gives a very effective working summary. 
 The changes were criticised not on their merits by the previous speaker Dr Paul Hutchison. He made a complaint that it had taken 20 years since the first Act was enacted for it to be amended. With some tortured logic he attributed the blame to this Government. In an otherwise significant contribution to the House he failed to see the evolving nature of powers of attorney and of our society generally. In the 20 years—which is not a long time—since the principal Act that we are now amending was passed there have been large changes that significantly change the thrust of the Protection of Personal and Property Rights Act. Those changes are found in the opening clauses of the amendment bill which insert new sections 93A and 93B into the principal Act. 
I turn briefly to new section 93B. It is an entirely new section that goes at the beginning of Part 9 of the Act and it talks about presumption of competence. This section makes it clear that a donor is presumed competent until the contrary is shown. That competence allows for a wide range of tolerance for behaviour that may fall below the normal standard of care or diligence of the average person. Just because someone makes decisions that the average person would find strange it is not necessarily a definition of incapacity. So there always remains with the donor the presumption of competence. In today’s society that presumption of competence the acceptance of difference and the allowing of people to age gracefully is a powerful incentive for the way we live our life in this the 21st century. The addition of section 93B to the principal Act is a major philosophical change to the principal Act and it opens up the ability of individuals to live their lives perhaps in a somewhat cantankerous way or in other ways that may upset some but without invoking the very strong powers available under the enduring powers of attorney. 
To balance that out I want to flick across to the ability to review the attorney’s decision. This is found in clause 18 of the bill. Clause 18 addresses section 103 of the principal Act. Under the principal Act section 103 gives a very limited power to review an attorney’s decision. In all but one occasion a person seeking to review an attorney’s decision first of all requires leave of the court before the review by the court can take place. The only person under the present Act who does not require leave of the court is the donor; any other person must first obtain leave of the court before he or she makes out an application for a review. In keeping with the wider powers of general competence the new section 103 opens up the range of people who can apply directly to the court—that is without going through the process of seeking leave—to review an attorney’s decision. This somewhat reflects the developing case law. 
In 1997 Judge John Bisphan a very experienced Family Court judge in Christchurch in  
Hansen v Blaikie 
 considered what the factors were when deciding to exercise his discretion to allow leave. He identified about six or seven factors that he thought should be established before the discretion should be exercised. That was applied again by Judge Bisphan in 2000 and developed further by Judge von Dadelszen only 2 years ago in the Family Court when that erstwhile Hawke’s Bay judge was sitting in Wellington. So there has been a growing case law on the circumstances where someone should be able to apply for leave. 
Now we have clause 18 of this amending legislation which rewrites section 103 of the principal Act and outlines the classes of people who may apply directly to the court. By taking out the intermediate step of having to apply for leave the people who generally fall within the ambit of the discretion identified by Judge Bisphan back in 1997 are included as people who can apply directly to the court. In short the people who may apply for leave are the donor a relative or attorney of the donor a social worker a medical practitioner a trustee corporation and any welfare guardian. If the donor is a patient in any residential care then that place may also apply. Other than those very wide categories any other person may still apply for leave for review. So the regulatory powers of the court have been widened and access to the court is made available to the people who will have an interest in the welfare of the donor. 
I turn to clause 15 of the bill. This adds a new section 100A to the principal Act. The new section 100A relates to the suspension of an attorney’s power to act. Section 100 is a very short section that makes the enduring power of attorney a fairly permanent event. Under clause 15 the new section 100A provides that “A donor of an enduring power of attorney who has been but is no longer mentally incapable may suspend the attorney’s authority to act under the enduring power of attorney by giving written notice to the attorney.” It goes on to state: “An attorney whose authority is suspended may not act under the enduring power of attorney unless a relevant health practitioner has certified or the Court has determined that the donor is mentally incapable.” The new section 100A reflects the presumption of competence that is contained in the new section 93B which I mentioned earlier in this speech and it retains maximum control to the donor who has given an enduring power of attorney but who remains at the time capable of looking after his or her own affairs. 
In this amending legislation we have quite a tough penalty provision. There is a $5000 maximum fine on conviction for persons who knowingly give a false certificate to commit an offence. People who do that are liable on summary conviction to a fine not exceeding $5000. So there are serious sanctions here for attorneys or individuals who give false certificates. That is important because the certificate given by an attorney is to be taken at face value by institutions or individuals who are asked to act upon it. Although the enduring power of attorney can be revoked the person then claiming to act under the certificate carries with him or her tremendous responsibilities to act with the utmost integrity. 
Enduring powers of attorney will no doubt continue to trouble the law because they can be easily misused but this amending legislation reflects New Zealand as it is in the 21st century. The legislation has the presumption of competence and it has tougher regulatory controls on attorneys so that they fulfil their responsibility with the utmost good faith and fidelity.