Page 3009 - Week 09 - Thursday, 21 September 2006
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An important feature of the bill is the general principles for an attorney to comply with when acting under an enduring power of attorney of a principal who has lost capacity. These principles ensure that the principal’s rights, including human worth and dignity, needs and wishes, are respected. Attorneys of incapacitated principals are required to comply with these principles to the maximum extent possible when exercising functions.
When relieving an honest attorney from personal liability for a contravention of the proposed legislation, a court is required to take into account the extent to which the attorney acted consistently with the general principles. In this way, the bill weaves into an attorney’s obligations the threads of a principal’s rights.
An attorney for a principal with impaired decision-making capacity is also obliged to keep records of transactions and to keep his or her property separate from that of the principal. A powerful but simple enforcement mechanism provided in the bill in relation to obligations of an attorney of a principal who has lost capacity is the power conferred on the Guardianship Tribunal to make orders in relation to enduring powers of attorney and the attorney’s obligations.
The bill provides for the effective use of existing institutions such as the Guardianship Tribunal, the Public Advocate and the Public Trustee to protect the interests of a principal with impaired decision-making capacity. For example, the Public Advocate may ask the attorney to produce books and accounts. The Public Advocate or the Guardianship Tribunal may seek the assistance of the Public Trustee to examine the attorney’s books and accounts.
The current legislation does not explicitly provide for circumstances where a power of attorney is revoked. This means common law applies for that matter. Consistent with public expectation about accessibility, and for clarity of law, the bill explicitly provides for situations where a power of attorney ends, such as attorney’s resignation, death of the principal, death of the attorney, the attorney’s impaired decision-making capacity and the winding up of a corporate attorney. An attorney loses authority in relation to property matters under an enduring power of attorney when he or she becomes bankrupt.
As an enduring power of attorney can authorise an attorney on health care matters of a principal, the Powers of Attorney Bill has some specific provisions relating to the exercise of that power. These provisions are mostly the redrafting of the relevant provisions of the Medical Treatment Act. A health care facility is required to ask whether a person receiving care has made an enduring power of attorney for personal care matters or health care matters and to keep a copy of it and periodically check its currency.
A principal can, under the bill, seek confirmation from the Supreme Court that the attorney has power to do and act under it. This will be helpful where there is a doubt about the attorney’s power. A person may make a power of attorney during his or her incapacity but may later regain capacity. Again, under the bill, the person can affirm the document and seek to have the power of attorney confirmed by the Supreme Court.
Another of the features in the bill is that it provides for recognition of interstate enduring guardianship documents in addition to interstate enduring powers of attorney, while also explicitly providing for the recognition of interstate general powers of attorney. These
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