Page 3656 - Week 12 - Tuesday, 21 November 2006
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There are a number of issues in this bill, which concern the opposition; hence the amendment we will be putting forward.
The Powers of Attorney Bill proposes to revise and update the powers of attorney regime in the ACT and also to bring it into line with developments in that area in Queensland, New South Wales and Victoria. It is good to see the government bringing us into line with other states. They do it when it suits them. Of course, in other areas where it does not suit them—such things like the anti-terrorist legislation—they will not. As a general rule, I think it is very sensible to have uniform legislation in areas such as this.
We do not live in the 19th century. We are not six independent colonies anymore. Certainly in most areas of the law I think it is very important that we have uniform legislation. Obviously, there may be the need from time to time for local differences to be recognised. But with things like this—powers of attorney—which are so crucially important, I think it is important that we have uniform legislation.
The bill covers both general and enduring powers of attorney. Turning first to general power of attorney, for example, if someone has to go overseas and leave behind family here—they have property and interests here that need attending to while they are away—it is a fairly common practice to appoint either a relative or good friend to look after your affairs when you cannot. In this instance, it is simply because you are unable to because you are away. Conversely, I suppose, if someone is perhaps seeking medical treatment and will have to be out of action but is obviously going to recover, again, a general power of attorney might be appropriate.
An enduring power of attorney is the same as a general power of attorney except that an enduring power of attorney continues on when someone becomes mentally incapacitated and is unable to exercise their affairs. Sadly, I had to take out one of those on my own mother about 18 months before she died. She was still compos mentis then, but clearly was starting to have a few problems. I had an enduring power of attorney in relation to her estate. That is also something that is quite common.
Notable features of the bill are that it provides safeguards for making a power of attorney; it has explicit provisions for dealing with multiple attorneys; ending of a power of attorney; and obligations of attorneys. It provides for the power of the guardianship tribunal to deal with matters arising in relation to an enduring power of attorney where the principal has become a person with impaired decision-making capacity.
It includes general principles. It enshrines the right of an incapacitated principal. It obliges the attorney to comply with them to the maximum extent possible. It clarifies the meaning of “decision-making capacity”, “impaired decision-making capacity” and things that do not indicate impaired decision-making capacity. It provides for the power of the Supreme Court to confirm a power of attorney. It is a pretty thorough rewrite. Looking at the bill generally, it seems to be an improvement on what we had before. With our ageing population, I think probably more and more we have the need for enduring powers of attorney.
There are a number of issues that I will address now. They tend to specifically revolve around such things as the health directive. Accordingly, the opposition will be moving an amendment in relation to that. Other concerns some of my members have—and I think
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