Page 4627 - Week 15 - Thursday, 21 November 1991
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form, some financial institutions have rejected the instrument because part A is not in a deed form. Part A deals with the primary appointment of the attorney, and it authorises the attorney to make decisions about the property of the donor.
Centuries ago it became a rule of law that for a legal document to become a deed it must satisfy 10 criteria. These included criteria that the document must be of parchment or paper; that the document must be in writing; that the author must be competent to contract; that the author must be named; that the person to whom the document is addressed must be able to contract; that the document must be sealed and delivered; and so on. In modern times the criterion for sealing is accommodated when a person signs, seals and delivers the document by way of attestation before witnesses. Sealing, in the traditional sense, is now required only of bodies corporate, and then not by way of a wax seal.
New rules of law can and are made by legislatures. In the case of the enduring power of attorney, this Assembly made a law in 1989 which said that a simple signed authority is sufficient. That should have been the end of the matter. All transactions in real property, by law, must be reduced to writing and, where a pecuniary interest is involved, be in a deed form. It appears that some financial institutions may believe that the authority for an attorney to sign a legal deed should itself be in deed form. Consequently, some financial institutions will not accept the ACT's simple English form.
The Government's legal advisers reject that interpretation, and I think any lawyer or person interested in simplifying the law must reject that interpretation. It is unfortunate when parliaments provide for simple English and some lawyers refuse to accept the effect of a simple English term. However, the persons who have used the form would be obliged to take the financial institution to court to prove that the form was effective. Rather than encourage unnecessary legal disputes, the Government has decided to remove the uncertainty by deeming all such instruments to operate as a deed, irrespective of whether they are strictly in deed form.
An opportunity has also been taken to include a general power of attorney form in the schedule to the principal Act. This new form 1 will help differentiate between a general power of attorney, used, for example, when a person is overseas and unable to attend to his or her local affairs, and an enduring power of attorney, which usually is used when a person becomes incapacitated or expects so to become.
The Bill also adds a new section 13A to the principal Act to assist attorneys when the question of whether the donor was incapacitated becomes an issue. The section will provide that a certificate from a medical practitioner will
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