Page 3008 - Week 09 - Thursday, 21 September 2006
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The bill provides clear criteria as to whether a principal has the capacity to make a power of attorney. The principal who has capacity must understand the nature and effect of making the power of attorney. For this purpose, the bill sets out matters that the principal should understand. Examples of such matters are that a principal should understand that they may state or limit the power of an attorney, when the power can be exercised and that the attorney may revoke the power of attorney when the principal has decision-making capacity. When making an enduring power of attorney, the principal is required to understand additional matters, for example, that the power continues even if the principal becomes a person with impaired decision-making capacity and that, at that time, the principal cannot effectively oversee the use of the power.
The bill also proceeds to clarify that there are matters for which powers cannot be given under a power of attorney. They are: one, special personal matters and, two, special health care matters. Special personal matters are matters such as revoking a will, making a power of attorney, voting and consenting to adoption of the principal’s child or to marriage of the principal. Special health care matters are removal of non-regenerative tissue from the principal when he or she is alive, sterilisation, termination of pregnancy and treatment of mental illness. Precluding these matters from substitute decision-making powers is intended to protect a vulnerable principal from any misuse or abuse of power of attorney. Also, powers relating to these matters may be too personal to a person to be delegated to someone else or, alternatively, may be matters that are more appropriate for decision by a tribunal or court.
A major emphasis in the bill is to protect the interests of a person whose enduring power of attorney operates during the time he or she has impaired decision-making capacity. Accordingly, the concern of the standing committee with regard to abuse of older people’s powers of attorney has been essentially covered in the framework of the bill.
An enduring power of attorney proposed in the bill may be made to give powers to an attorney in relation to property matters, personal care matters, and health care matters. Property matters relate to financial and property matters of the principal. Personal care matters are matters such as where the principal lives, whom the principal lives with, the principal’s daily dress and diet and whether the principal will go on holiday and where. Health care matters include consenting to medical treatment and withholding or withdrawing of medical treatment.
The standing committee recommended that safeguards be developed to assess the capabilities of the person handing over the power of attorney. As I have stated earlier, the bill details the elements of a person’s decision-making capacity that would indicate that the person understood the nature and effect of making a power of attorney. In addition, a witness to a power of attorney must certify that the principal appeared to the witness to have understood the nature and effect of making the document.
In the case of an enduring power of attorney, one of the two required witnesses should be a person authorised to witness the signing of a statutory declaration. An offence of dishonestly inducing the making or revoking of a power of attorney is provided in the bill, with a penalty of $10,000 or a jail term of one year, or both. These measures address the standing committee’s recommendation by building in safeguards at the time a power of attorney, particularly an enduring power of attorney, is to be signed.
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