Page 703 - Week 03 - Thursday, 22 March 1990
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That the Assembly takes note of the paper.
MS FOLLETT (Leader of the Opposition) (11.07): I am very happy to be able to speak on this useful report from the Australian Law Reform Commission on guardianship and management of property. The report results from a reference in 1988 by the Commonwealth Attorney-General, Mr Bowen. That reference required the commission to inquire into the desirability of new law and procedures to provide for the guardianship and management of property of persons who are unable, either wholly or in part, to manage their affairs or property.
Shortly after self-government I became aware of some very sad and unfortunate situations involving people suffering from Alzheimer's disease or other intellectual disabilities. These cases involved the fact that relatives of the affected people were forced to go to the Lunacy Court to obtain an order under the Lunacy Act of 1898 to enable them to manage the affairs of their relatives.
As Attorney-General, I resolved that that situation should be dealt with urgently. Last year I was very pleased to be able to introduce, and see the Assembly pass, the Powers of Attorney (Amendment) Act, which partly solves the problem. I was intrigued to notice that Mr Kaine, in his statement this morning on the ageing, claims to have done that. Unless he has another, identical Act, I think the one to which he was referring was the one that I introduced last year. Powers of attorney given under the new Act operate after the donor of the power becomes incapacitated.
Under that Act a power of attorney can be used to appoint a person with either property management powers, guardianship powers or both. But even with the new enduring powers of attorney a situation could develop in which the enduring power of attorney is inadequate despite the foresight of those involved - the relatives and so on. For example, where a person who has appointed an attorney becomes incapacitated there may still be a need for a guardian or manager to be appointed because the attorney has not been given sufficient guardianship or management powers. Clearly, there is a need for a court to be able to add to, or modify, the power of attorney in some circumstances. There will also be unfortunate situations in which a person becomes incapacitated without prior warning or without making an arrangement for a power of attorney. Quite apart from the mental incapacity recognised by the archaic Lunacy Act, a guardian or property manager might be required, due to incapacity caused by drug or alcohol problems. These sorts of problems led to the situation in which the Law Reform Commission was asked to review. It is estimated that in the ACT some 80 people a year are in need of management or guardianship orders, or both, so it is not an inconsiderable problem within our community.
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