Page 132 - Week 01 - Thursday, 9 April 1992
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The operation of the new law has been reviewed by my department, and this Bill presents a range of improvements resulting from that process. However, Madam Speaker, there has been one problem and this Bill addresses that also. Since the introduction of the standard enduring power of attorney form, some financial institutions have rejected the instrument because part A is not styled as a deed. Part A is the key part of the form effecting the appointment of the attorney and it authorises the attorney to make decisions about the property of the donor.
Madam Speaker, some of the issues involved are technical and it will take me a minute or two to explain them, but I believe that the Assembly should be aware of them. Centuries ago it became a rule of law that certain dealings, such as dealings in land and powers of attorney, had to be effected by deed. Certain technical rules also became established as to the formalities of a deed. For a legal document to be a deed it must satisfy a number of criteria: The document must be of parchment or paper, the document must be in writing on parchment or paper or the like, and the document must be sealed and delivered. In modern times many of these old rules have been abolished or modified by legislation. Criteria such as sealing are generally accommodated when a person signs a document by way of attestation before witnesses. For example, the New South Wales Conveyancing Act has provided to this effect since 1920, and that legislation is applied in the ACT.
Madam Speaker, new rules of law can be and are made by legislatures, and outdated rules can be and are replaced. This Assembly made a law in 1989 which said that a simple authority in plain English, signed and witnessed, is sufficient to create an enduring power of attorney. That, Madam Speaker, should have been the end of the matter. However, it appears that some financial institutions may believe that the authority for an attorney to sign a deed should itself be in deed form. Consequently, some financial institutions will not accept the ACT's plain English form.
The Government's legal advisers reject that position. However, there are very good reasons for taking the opportunity to remove any uncertainty once and for all. If a financial institution refused to accept a form, 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 and expensive legal disputes, often involving people in no financial position to pay for them, the Government had decided to resolve the issue by deeming all such instruments to operate as a deed, irrespective of whether they are strictly in deed form.
The Bill also makes a range of improvements and technical changes as a result of the review of the operation of the law carried out by my department. Since the introduction of the enduring power of attorney in 1989, government agencies have received many inquiries about general powers of attorney, and it appears that there is also a need for a simple form for this purpose. Therefore, the opportunity has also been taken in this Bill to include a general power of attorney form in the schedule to the principal Act. This new form will also help the public to 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 is used when a person becomes incapacitated.
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