Page 3660 - Week 12 - Tuesday, 21 November 2006
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development of a legislative remedy onto the front burner and not to let it languish in the too hard basket for another five years. We have to realise that there is also the issue of life-threatening neglect for many elderly people.
As I was saying, at least an attorney with a well-drafted power of attorney document will be able to argue with the medical specialists on the principal’s behalf. Presumably one of the first legal cases involving the new legislation will involve an attorney trying to give effect to their principal’s wish to die with dignity.
Perhaps provisions giving power to the attorney over medical procedures which are not expressly excluded by the bill should be beefed up. Alternatively or additionally, the Attorney-General could use his fiat to intervene in the case and argue on behalf of the attorney’s power to give effect to the principal’s advanced health directives.
In his presentation speech the minister also said that safeguards have been included to ensure a more rigorous assessment of the principal’s capacity to understand the nature and effect of making a power of attorney. Combined with the stiff penalties for dishonestly inducing the making of a power of attorney, these measures are welcome. However, they still rely largely on the goodwill and capacity of the attorney and the witnesses.
The capacity to apply to the Supreme Court for guidance as to the scope of an attorney’s powers is useful, but just lodging a Supreme Court action costs several hundred dollars. When you add legal fees to that, I doubt that these provisions will be utilised by many people who are merely seeking clarification of their powers.
The people assessing the principal’s decision-making capacity will usually be the witnesses to the original documents. They will usually lack medical expertise. They could understandably be loath to question the principal’s decision-making capacity to their face. Nonetheless, without ramping up the mandatory legal and medical procedures and expenses, this may be a very good compromise solution.
I note that some other jurisdictions have gone the extra step of requiring qualified medical and/or legal advice. I agree that this is possibly too onerous a requirement, but I urge the government to keep a watch over developments in those jurisdictions to see how the more tightly regulated regime works in practice.
The principles in schedule 1 of the bill are a welcome addition to the regime. I hope the forms that are developed will draw potential attorneys’ attention to these matters. I do not share the Attorney-General’s belief that this bill will address abuse of older people’s powers of attorney. It will go some way to addressing them but, without a much more tightly regulated regime, it is inevitable that abuse will occur. This bill does not really make it easier for attorneys to understand and comply with their obligations. That will hopefully come in the form that the forms take. Of course, that is not before us today.
I note that this bill was developed following substantial consultation with and work by the community sector. I was surprised, then, to discover that at least one of the government’s key partners in this project was not aware that the bill had been introduced into the Assembly and that others were surprised it was coming on so soon.
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