Page 3665 - Week 12 - Tuesday, 21 November 2006
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health care. The court, when considering relieving an attorney from liability for a breach of the attorney’s obligations, is required to consider the extent to which the attorney had complied with the principles.
The guardianship tribunal is given power under the bill to make a number of orders in relation to an enduring power of attorney where the person who has made it has lost capacity. Such orders range from giving a direction to the attorney to do or not to do a thing to making a declaration about the interpretation or effect of the enduring power of attorney. An interested person, who may be the attorney, a relative of the principal, the public advocate or a guardian or manager of the principal, could seek such orders.
These and other measures provided in the bill strengthen the protection of persons who make an enduring power of attorney, in particular when their attorney acts for them during the period they have impaired decision-making capacity. The bill will also contribute to people having increased confidence in providing now for their affairs during their incapacity.
The bill explicitly provides for the circumstances in which powers of an attorney will end for the specific obligations of attorneys. It also provides for the right of the public advocate to have reasonable access to a principal with impaired decision-making capacity. This would enable the public advocate to make decisions about a course of action needed to address any concerns about the abuse of powers by an attorney and to protect the interests of the principal. A relative or carer of the principal, or any specified interested person, is also given the right to apply to the guardianship tribunal to seek access to the principal whose decision-making capacity is impaired. This right would prevent any attempt by attorneys to have unreasonable control over the principal.
The scheme provided in the bill will ensure that attorneys discharge their duties to the principal in a responsible manner. An innocent attorney is, however, protected even if the attorney acts in breach of an obligation.
A health care facility is required under the bill to check whether a patient who receives care in the facility has made an enduring power of attorney relating to his or her health care and personal care matters and, if so, to keep a copy of it or a note about it. This measure would ensure that the principal’s wishes about his or her treatment are respected. I think this is an important form.
Interstate enduring guardianship documents, and interstate enduring powers of attorney and general powers of attorney, will be able to be recognised under this bill. This will encourage the use in the ACT of substitute decision-making instruments made under the law of another state or territory.
The Legislative Assembly Standing Committee on Legal Affairs, in its report No 33 of 16 October this year, noted that the provisions of the bill would enhance the protection of rights. It also expressed a “rule of law” concern that paragraph 32 (2) (b) of the bill seems to negate the point of attaching conditions to the exercise of a power under an enduring power of attorney and considered that this required explanation. The standing committee also asked what kinds of conditions are affected and whether this would include a condition stated in the bill, such as those in clauses 33 and 46.
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