Page 421 - Week 02 - Wednesday, 13 May 1992
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Hundreds of years ago in England it became established that certain legal transactions had to be effected by deed, and we have inherited that law. Perhaps the two main surviving examples of this are dealings in real property or land and powers of attorney. For a document to be a deed it has to satisfy a number of technical and formal criteria. For example, it must be signed, sealed and delivered; it must be on parchment or paper; the person making the deed must have legal capacity; and so on. In modern times these requirements have been largely removed by statute and are largely taken to have been satisfied when a person signs a document and attests it before a witness. The New South Wales Conveyancing Act has provided to this effect since 1920, and that law applies in the ACT.
Some financial institutions in the ACT have taken the view that the enduring power of attorney form is not effective because it is not in deed form. Briefly, their reasoning seems to be that because the power may authorise a donee to transact in real property, which must be done by deed, the power itself should also be in deed form. Some institutions have therefore refused to accept the plain English enduring power of attorney form. The Government's legal advisers reject that interpretation and the Government finds it regrettable that any inconvenience could be caused to persons in the ACT arising from it.
The 1989 Powers of Attorney (Amendment) Act provided that an enduring power of attorney could be executed in the plain English form. The legislation made that the law, and that should have been the end of the matter. However, the Government takes the view that it is desirable to end any uncertainty in unmistakable terms. This Bill will do that by expressly providing that powers of attorney executed in accordance with the Act will operate as a deed, including the forms already executed in good faith, irrespective of whether they are strictly in deed form.
A new initiative achieved by this Bill is an improvement to fill a need that has become apparent since the introduction of the enduring power form in 1989. We have now included as form 1 in the schedule a standard ordinary power of attorney form. After the introduction of the enduring power, inquiries and requests to the Minister and to the Department of Justice and Community Services revealed that there was a demand for a plain English ordinary power of attorney form as a model easily available to the public.
The form we have adopted as form 1 in the schedule to the Bill is consistent with the New South Wales form. It will enable the public to distinguish clearly between the enduring power and the ordinary power of attorney. An ordinary power, of course, might be used for quite specific or temporary purposes, such as when a person or family go overseas and wish someone to handle property or other transactions while they are away.
This Bill also makes a range of other relatively minor and technical improvements. New section 13A will assist attorneys by reducing the complexity of evidence in proceedings when medical evidence is needed of a donor's incapacity. The forms have been improved with a reminder near the signature block that witnesses must not be related to the donor or donee of a power.
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