Page 3666 - Week 12 - Tuesday, 21 November 2006
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Paragraph 32 (2) (a) provides that a power under an enduring power of attorney can be exercised while the principal has decision-making capacity. Paragraph 32 (2) (b) provides that it does not matter whether a condition that must be satisfied before the power can be exercised has not been satisfied. The government’s amendment to this subclause addresses the concern of the standing committee by clarifying the intent of the provision.
The intent of the provision is that an attorney can exercise a power under an enduring power of attorney while the principal has impaired decision-making capacity, even though the power of attorney specifies a condition about when the power is to start to operate. As provided in the example included under the amended provision, an enduring power of attorney may specify a date for its commencement, but an attorney can exercise power under it where the principal becomes a person with impaired decision-making capacity before the specified date.
Going back to the standing committee’s concern, I wish to clarify that other conditions of the exercise of a power under an enduring power of attorney will normally need to be satisfied before or when the attorney exercises the power. Conditions under clauses 33 and 46 of the bill referred to by the standing committee will need to be complied with. Clause 33 provides that an attorney under an enduring power of attorney cannot authorise anyone else to exercise the attorney’s powers unless the power of attorney authorises it. Clause 46 provides a mandatory obligation that must be complied with before an attorney asks for the withholding or the withdrawal of medical treatment to the principal.
Mrs Dunne, in her comments, made some remarks about documentation. The government is always very happy to make available any documentation that members request. We do that through the briefing process. I am not aware of any particular request for further information being made in the briefings provided to Mr Stefaniak or Dr Foskey, but the government is always very happy to consider those requests and attempt to respond to them wherever possible. I am not aware of that being the case in these circumstances. Mr Stefaniak foreshadowed an amendment. I will deal with the amendments when we get to the detail stage. I commend the bill to the Assembly.
Question resolved in the affirmative.
Bill agreed to in principle.
Detail stage
Clauses 1 to 31, by leave, taken together and agreed to.
Clause 32.
MR CORBELL (Molonglo—Attorney-General, Minister for Police and Emergency Services and Minister for Planning) (11.15): I move amendment No 1 circulated in my name [see schedule 1 at page 3724]. I present a supplementary explanatory statement to the amendment.
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