Page 423 - Week 02 - Wednesday, 13 May 1992
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something you would expect an ordinary member of the community to understand. So, it is sensible to say that we should flag that on the standard form. The whole purpose of this exercise is to have standard forms so that legal documents, documents which have a significant legal effect, can be readily understood by the community and executed by members of the community without the need for expensive legal advice.
Ms Szuty also raised a concern about the possibility of abuse, pointing out that a person may, in effect, perpetrate a fraud by getting a power of attorney executed by someone who is unable to comprehend what he is doing. In the original amending legislation, the 1989 Act, which provided the substantial overhaul of the 1956 Act, a new section 3A was inserted which said that the only reason it is invalid is if the person was unable to understand the effect of what he was doing. So, you can always go to a court and look at that.
I would also note that we have created the Guardianship and Management of Property Tribunal and the Community Advocate, both of which are empowered to take a broad-ranging interest in persons under an incapacity. So, if there were any reason to suspect that there had been foul play, there would be a couple of avenues. You could go through the Guardianship Tribunal to get a move against the property or you could go to the Supreme Court and exert an action under section 3A. Clearly, we are guarding against fraud or abuse. The Government will be supporting the foreshadowed amendment.
Question resolved in the affirmative.
Bill agreed to in principle.
Detail Stage
Bill, by leave, taken as a whole
MS SZUTY (4.12): I move:
Schedule 2 - Form 2, page 7, in the section headed "PLEASE NOTE:", insert "who are present at the time the donor signs the Power of Attorney and" after "2 persons".
I thank the Attorney-General for his support of the amendment. As it stands, the schedule does imply that signatures must be witnessed and dated by two persons who are not related to the donor or attorneys. However, it is not necessarily clear that all signatures must actually be signed in the presence of these witnesses. An amendment to the effect that the signing must actually occur in the presence of two witnesses is therefore desirable for the lay person who will be using the schedule to confer power of attorney.
MR HUMPHRIES (4.13): We support the amendment. It makes clear what requirements fall on a person witnessing a document of this kind. In fact, I am surprised that it was not there in the first place. It seems to me that that is a matter which is important to include. A number of wills, in my experience, have failed because of the failure of the two witnesses to be present at the same time that the person who is signing the document is present and signing his own name. So, this is an important requirement to be included in that form.
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