Page 419 - Week 02 - Wednesday, 13 May 1992
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ordinary citizens can have about their power to delegate, as it were, their basic life decisions, their responsibilities during periods of crisis or periods of absence overseas or whatever, to people who can make those decisions for them. The extensions that are occurring in this Bill are an appropriate way of building on the obvious success of that earlier Act.
The schedule to the Bill sets out two new forms - a general power of attorney and an enduring power of attorney. A general power of attorney is meant to be the sort of document that one completes and executes before going overseas, for example, to provide for someone to act in one's absence. The enduring power of attorney was the subject of the first Powers of Attorney Act, which gave a person the power to create an enduring power of attorney during a period of incapacity such as mental illness or in the face of a serious operation or something of that kind. The clear and simple format set out in this Bill ensures that both those powers are easily understood.
I have brought in today a copy of a power of attorney which I drew up for a friend while I was acting as a solicitor. It is a very large document of four pages, small type, extremely complicated, very detailed, full of words that would be very difficult for people to understand if they were not trained as lawyers. The contrast between that document and the ones which appear in the schedule to this Bill is very welcome.
The Scrutiny of Bills Committee addressed a couple of matters when it was examining this Bill. There is only one I want to raise in the context of this debate. Proposed new section 3AD(2) in effect says that section 3AA of the principal Act - that is the section creating the new form 1 - as amended by this Act shall be deemed to have commenced on 24 December 1956. I have not checked, but I assume that that reflects a similar deeming provision that applied to form 2 in the schedule to the first Act. In any case, even if it does not, we have to be aware that we are creating here, it seems to me, a very extensive degree of retrospectivity for the operation of this Bill.
This Bill, when it becomes an Act, will in effect change the status of documents that might have been executed up to 36 years ago. A person who might have created a particular document 35 years ago that was not a valid power of attorney would now have in his possession, or in the possession of someone to whom he has given this power, a valid power of attorney. That is obviously pretty unlikely; it is not likely that many people would have done that 35 years ago and still have it current. But we are looking at a very large degree of retrospectivity in this provision, and it is a matter of some slight concern.
On balance, although it may occasion loss to some people - those people who would have benefited from a failed power of attorney, for example, will lose out from this - that loss is probably to be expected and to be countenanced by the law because we are not in the business of creating benefits for those sorts of people. So, although my party has had a lot to say about retrospectivity in the past, on this occasion we are not going to oppose the Bill because of that level of retrospectivity.
There are a few other tidying up provisions in the Bill that are certainly worthwhile. For example, it makes it clear to trustee companies particularly, and perhaps to lawyers, that the failure of the power of attorney to be signed, sealed and delivered in a formal sense is not a bar to its being considered a proper deed.
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