Page 420 - Week 02 - Wednesday, 13 May 1992
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That is a tidying up provision which I hope will clear up any problems that might exist at this time with respect to the Bill. I think this is a worthwhile piece of legislation. It builds on the success of our earlier Act, and I commend it to the Assembly.
MS SZUTY (4.00): I welcome the initiative undertaken by the Attorney-General and am pleased that these matters are being clarified. However, I would like to see some mechanism for monitoring of the use of powers of attorney as, from a lay person's point of view, I can see the scope for abuse of the privilege of being made a donee. The Attorney-General may wish to outline the checks and safeguards which would stop someone from unfairly taking advantage of, say, an elderly person or someone from a non-English speaking background.
I foreshadow that I will move an amendment to further spell out the wording of the witnessing of the document. While it is accepted that most people would see witnessing as something that happens "in the presence of", the intent is to make the form as user friendly as possible. I submit that my amendment takes any ambiguity out of the paragraph, for the benefit of those who would not be used to signing legal and quasi-legal documents.
MS ELLIS (4.01): Madam Speaker, this amendment Bill makes some significant improvements to the law relating to powers of attorney in the ACT that is contained in the principal Act, the Powers of Attorney Act 1956. This Bill was introduced and set down for debate in November 1991, but unfortunately did not come on due to the intervention of other matters on the last sitting day. The Bill presently before us is unchanged, except for its year.
The first Follett Government introduced reform in this area in October 1989 with the Powers of Attorney (Amendment) Act 1989, which introduced an enduring power of attorney to the Territory. This reform overcame a problem in the existing law which meant that ordinary powers of attorney lapsed when a donor or the person conferring the power became incapacitated. An enduring power of attorney may operate when a donor is incapacitated by stroke, trauma or senility and is no longer capable of rational decision making. These are the circumstances when a person may plan in advance that his affairs be handed over to a person he trusts. It is also possible for a donor to activate the power so that it operates immediately or from a specified date, such as the day before he or she undergoes major surgery.
Members will find an example of an enduring power of attorney as form 2 in the schedule to the Bill. It is in plain English and is accompanied by explanatory notes. This reform has been well received by the community and by the legal profession. I might here acknowledge the assistance of the Law Society of the ACT.
The amendment Bill before us today does a number of things to add to and improve the law from the 1989 reforms. The most important aspect of the Bill is that it confirms that the enduring power of attorney may operate as a deed. This is a fairly technical issue; but it is important, in my view, that it be explained because of the disruption to users in the community which could be caused if there were a reluctance to accept the effectiveness of enduring powers of attorney executed in the form provided by the Act.
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