Protection of Personal and Property Rights Amendment Bill

Dr PAUL HUTCHISON (National—Port Waikato) Link to this

Thank you for the opportunity to speak on Part 1 of the Protection of Personal and Property Rights Amendment Bill. This bill has arisen out of the Law Commission’s paper: Misuse of Enduring Powers of Attorney in 2001. As I noted yesterday it is now 2007—an extraordinary time, in fact 6 years, since that paper—and finally this bill has come into Parliament. It does seem that it has taken a very long time for this Labour Government to finally get this legislation before the Committee, given that it has the support of Her Majesty’s most loyal Opposition. National regards this as a reasonable bill, but we are very concerned that it has taken so long to be brought here, and that perhaps reflects quite directly on just how lackadaisical this Labour Government has become.

I note that there is a curious statement about commencement in clause 2. It states: “This Act … comes into force 1 year after the date on which it receives the Royal assent (unless it is earlier brought into force on a date appointed by the Governor-General by Order in Council).” It does seem curious, given the very long gestation of this bill after the commission’s report, that it could be another year before the legislation comes into force. I would certainly exhort the Government to make sure that it actually is brought into use far earlier than that date. Perhaps the Minister in the chair, the Hon Mita Ririnui, may take a call and assure us that his Government will bring that about.

Part 1 is really involved with miscellaneous amendments around persons who may apply for exercise of the court’s jurisdiction and it revolves around repealing paragraph (f) of section 7 and substituting the following paragraph: “where the exercise of the Court’s jurisdiction is sought in respect of any person who is a patient or a resident in any place that provides hospital care, rest home care, or residential disability care within the meaning of the Health and Disability Services (Safety) Act 2001, the principal manager of that place:”. It is important to point out that some have thought that this bill is to be confined to just the elderly, whereas clearly, and as I know my learned colleague Kate Wilkinson has mentioned earlier, this bill does, indeed, apply to young and old. It applies to those who are disabled and to those in the whole spectrum of either mental disorders or physical incapability that may occur. So it is not just confined to one particular area; it is broad in its perspective.

Clause 5, “Persons who may apply for exercise of Court’s jurisdiction” states: “Section 26 is amended by repealing paragraph (g) and substituting the following paragraph: (g) where the exercise of the Court’s jurisdiction is sought in respect of any person who is a patient or a resident in any place that provides hospital care, rest home care, or residential disability care within the meaning of the Health and Disability Services (Safety) Act 2001, the principal manager of that place:” Once again these miscellaneous amendments in Part 1 are important to make sure the coverage of the bill is comprehensive.

Might I say once again that it is of concern to National that this bill has taken so long to come through—something like 6 years after the commission’s paper on the Misuse of Enduring Powers of Attorney. That is a lot of time, and it does, as I say, reflect very badly on the Labour Government that probably tens of thousands of New Zealanders have not had the opportunity to benefit from this bill.

KATRINA SHANKS (National) Link to this

It is my pleasure to rise tonight to speak to Part 1 of the Protection of Personal and Property Rights Amendment Bill. Part 1 is a very small part—there are only two clauses in it—and basically it applies to persons who may apply for exercise of the court’s jurisdiction in terms of being “a patient or a resident in any place that provides hospital care, rest home care, or residential disability care within the meaning of the Health and Disability Services (Safety) Act …”. The bill itself is very important. It is one that has been underestimated, I think, in respect of the impact enduring powers of attorney have on people’s lives. This bill has been extremely well written. The officials are here tonight to listen to us talk to their bill. I congratulate them on the good work they have done. This bill will be in place for quite some time before it will need to be amended, in years to come, to stay relevant for our society, for our ageing population, and for the people who choose to use enduring powers of attorney. We had many submitters on this bill, and I believe that none of them spoke to Part 1.

The main issues coming out of the submissions related more to the cost of this legislation and the impact that that will have on enduring powers of attorney and the cost of enduring powers of attorney going forward. We had quite a few submissions from the community law centres around New Zealand. Really, their main concern coming through in respect of this bill was the cost going forward, and the regulations and conditions that will be imposed on enduring powers of attorney going forward, because this bill is actually intended to safeguard and protect those users of enduring powers of attorney in our society.

This has been great legislation, which we are very proud to be part of. I was on the Social Services Committee that considered the bill, along with Judith Collins—who is the deputy chair—Paul Hutchison and Bob Clarkson from the National Party, Heather Roy, Judy Turner, Sue Kedgley, the chair Russell Fairbrother, and some others. It was a good select committee. We worked hard, and we listened to the officials’ advice. We heard some very, very good advice from the Law Commission. As always, the commission put in a wonderful submission and had some great points, which we took on board when we put this legislation together.

Part 1 is very small, very direct, but also very important. These small amendments are normally the ones that trip people up as they go through, so it is important that we get these little ones right, especially for those people who are more needy. The more needy people are the ones who are actually using enduring powers of attorney, and those who are in the hospitals and the rest homes and have respite care. Part 1 is very important for the most needy in our society, whom it addresses.

The Protection of Personal and Property Rights Act 1998 related to enduring powers of attorney. Obviously, this bill came about through recommendations made by the Law Commission after a 2001 report was published on the misuse of enduring powers of attorney. There has been a little bit of a time lag between the 2001 Law Commission report being published, and 2007 where we are today. It has taken a little while to get this legislation in front of the House, but it is here now, and that is the important thing. It is important that this legislation is here, as it is a safeguard for all those who have been abused by not having an enduring power of attorney that worked well for them.

It was interesting to hear from submitters that most of the people who were abused by their attorneys were abused by family members, who were taking advantage of their parents or grandparents who were reliant upon them. These family members had the rights to do things and were abusing those rights. So this legislation has been very important going forward. We look forward to supporting it, and I will be speaking to it later in the night. Thank you.

JUDITH COLLINS (National—Clevedon) Link to this

It is my privilege to be able to speak tonight to this Protection of Personal and Property Rights Amendment Bill in the Committee stage. In particular I would like to point to clause 18, which affects section 103 of the principal Act in relation to the ability of people to apply to the court “to review any decision made by an attorney acting under an enduring power of attorney while the donor is or was mentally incapable:”.

This is an extremely important provision. I say that because there have been instances—as my colleague Katrina Shanks has so ably pointed out—of people who have misused a power of attorney to benefit themselves, others, or their own families to the detriment of an elderly relative. In particular, it is quite distressing for people to see that sometimes the most unkind people in these situations can be one’s own children. I think that many of us hope that our children do not do the same to us as others have. I think it is important to note that the donor—and this bill does accept the fact that donors can sometimes lose and then regain mental capacity—can ask for decisions to be reviewed. Other people who may apply for any decision to be reviewed are: any relative or attorney of the donor who is not the particular attorney who has made the decision; a social worker; a medical practitioner; a trustee corporation; the manager of a residence in which the donor is a patient; and any welfare guardian.

So there are ample opportunities for those people who see, or think that they see, an abuse of a power of attorney being undertaken to do something about it. It is really important to have that standing, and one of the best things about this particular part of the bill is that it allows that. Many of us will have worked with people from Age Concern and with other people who are involved in the area of preventing elder abuse, and these people have said that that provision is particularly important. That is why the Social Services Committee inserted subsection (h) in section 103, to allow for “a person authorised by a body or organisation contracted by the Government to provide elder abuse and neglect prevention services” to also apply for the decision to be reviewed. So there is ample opportunity to review a decision.

Hopefully, people will never need to apply for a review. Hopefully, the message will get out there that the enduring powers of attorney, which were set up to help people whose health—in particular, mental health—had declined, often in their advanced years, will not be able to be misused again. Obviously, some people will try, but at least we now have a mechanism—a very good mechanism, I believe—for people to be able to deal with that.

In conclusion I say that I am very pleased with this bill. I think that Part 2 is a good part. It is the main part of the bill, it is sensible law, and it is one that I think everybody on the select committee was able to agree with and be proud to be part of.

Hon RUTH DYSON (Minister for Senior Citizens) Link to this

I first of all add my thanks to that already given to the officials, who have worked so hard and constructively with the Social Services Committee on this bill. I also repeat the comments I made in my second reading speech and thank the select committee. It is not well known amongst the public of New Zealand that policy differences are often put aside during the select committee process for the betterment of bills, and this has certainly been an example of that. So I acknowledge all of the members of the select committee, rather than just those of my own party, which I do not think is very appropriate to do at a time like this.

I also want to address Supplementary Order Paper 145 in my name, which proposes a number of changes that I draw to the attention of the Committee. It starts off with changes to clauses 7 and 8. These are technical changes that clarify the relationship between new section 94(A), which specifies the requirements for creating an enduring power of attorney, and section 95 of the principal Act, which sets out when a power of attorney is an enduring power of attorney. That is the first change set out on my Supplementary Order Paper.

The next change replaces subsection (1) of new section 94A with a new subsection that provides that section 94A applies only to powers of attorney executed after the bill comes into force. That clarification is obviously needed. It inserts new section 95(1) to provide that: “Except as otherwise provided in this section, a power of attorney that meets the requirements of section 94A is an enduring power of attorney.” So they are points of clarification.

The next change proposed in my Supplementary Order Paper is to clause 15. It basically corrects an earlier oversight in new section 100A, which, as the explanatory note of the Supplementary Order Paper states: “enables a donor of an enduring power of attorney who has been, but is no longer, mentally incapable to suspend the attorney’s authority to act under the power.” This amendment ensures that the court’s determination of the donor’s mental incapacity, if any, is taken into account for the purposes of this new section.

The next clause that is amended by my Supplementary Order Paper is clause 16. That is a technical amendment; it just removes an incorrect section reference from the principal Act, so I am sure there will not be a lot of debate about that.

Then the next amendment is to clause 18—the part of Part 2 that the member who has just resumed her seat, Judith Collins, spoke to. The proposed amendments to this clause relate mainly to new section 103A. It is amended to provide consistency of wording as a consequence of the changes I referred to in clauses 7 and 8. It also corrects a minor drafting error so that we have terminology that is consistent, and I know that members in this Chamber will be particularly interested in that consistency.

The next changes, which are the final ones in this Supplementary Order Paper, are to clauses 21 and 24. They are further technical amendments that correct minor drafting errors for consistency of terminology by replacing “made” with “executed”. I am sure the Supplementary Order Paper will continue to be well supported by parties in the Chamber. It is a pleasure to be able to progress with strong support legislation whose primary purpose is to give better financial protection and to ensure that the persons’ interests are carried through when they are no longer able to make decisions for themselves.

We now know that the most vulnerable people in our society, who are dependent on some other trusted person to make a decision for them, will have much stronger backing from the law to make sure that that trust is not abused. Sadly for us all, that trust is abused by members of families. In fact, that is the biggest concern in terms of elder abuse and neglect that is referred to the services that our Government funds throughout the country. Perhaps it is the one that is the most reported, but it is certainly one that we are taking big steps to address in this legislation, so I urge its speedy progress throughout the Committee stage.

Dr PAUL HUTCHISON (National—Port Waikato) Link to this

I am grateful for the opportunity to speak on Part 2 of this Protection of Personal and Property Rights Amendment Bill. It is good to see the Minister in charge of the bill, Ruth Dyson, in the chair, and I hope that at some stage of events she will answer the question that has been on my mind for quite some time: given that the commission’s report was in 2001, why has it taken so long for the Labour Government to finally bring this legislation to the House? Her Majesty’s most loyal Opposition is supporting this bill—we believe that it is sensible—but we are concerned that the Labour Government has prioritised other things, and, indeed, that it has taken it so long to bring in something sensible. Perhaps the Minister will tell us why it has taken so long.

I would like to start off by commenting on new section 93B, “Presumption of competence”, inserted by clause 6. I make the point here that new subsection (4) states: “A person must not be presumed to lack the competence … or, as the case may be, the capacity described in subsection (1)(b), just because the person is subject to compulsory treatment or has special patient status under the Mental Health (Compulsory Assessment and Treatment) Act 1992.” I am sure the Minister would agree it is absolutely appropriate that that is clearly spelt out.

We go on to creating the enduring power of attorney. I was very pleased to see that some of the constructive submitters caused a change to be made to the bill, in terms of witnesses to the signature of the donor. It will be possible for not only a lawyer, or an officer or employee of a trustee corporation, but also a legal executive who meets the requirements of new section 94A(9), inserted by clause 7, to witness a signature. I must say that the New Zealand Institute of Legal Executives made an excellent submission. It pointed out the range of things that legal executives do, and that they currently undertake this work anyway—both large and small drafting. It mentioned an informal email survey of its members that had something like a 76 percent response rate, and that these executives are regarded as highly competent in their explanations to their donor clients. Much to my surprise, on average legal executives are doing this two or three times a week—up to 200 times a year. The institute had very strong support from both the Law Society and Chapman Tripp in its submission, so it is very pleasing to see that, indeed, the institute’s submission has been taken notice of and that provision is within the bill.

Finally I want to comment on one of the Minister’s amendments in clause 15. I agree that we should support the point made in new section 100A(1), which states: “A donor of an enduring power of attorney who has been, but is no longer, mentally incapable may suspend the attorney’s authority to act under the enduring power of attorney …”. It is absolutely vital to have that correct. It would have been an awful anomaly if it were not, so National will be supporting that very, very cogent issue.

It is with pleasure that I have spoken on this bill. National will support it as we go on in the debate.

RUSSELL FAIRBROTHER (Labour) Link to this

It is my pleasure to follow the previous speaker, Paul Hutchison, who wobbled around the point until he thought of something to say, which was very typical of his contribution in the select committee process too. His concern was mostly with the pineapple slices on the table, instead of getting to the meat of the subject.

I was delighted to hear the Minister Ruth Dyson say that great camaraderie had broken out in the select committee. That may well be an exterior witness’s viewpoint of it, but I have to say it was an enjoyable select committee for only two reasons: one, because of Michelle Malyon, who left the committee today to go to richer pastures and who will be a loss to the Clerk’s Office; and, two, because the committee was very well led and because during the time of its being very well led some of the contentious matter was dealt with.

JUDITH COLLINS (National—Clevedon) Link to this

Generally, the Protection of Personal and Property Rights Amendment Bill is one that I think everyone can agree with, but there are a couple of little things I would like to point out. It is not a bill to be taken lightly, because, obviously, powers of attorney—particularly enduring powers of attorney—are incredibly important documents.

I was re-reading some of the clauses and in particular clause 20, which substitutes section 107 of the principal Act. I noted that attorneys cannot actually benefit from their actions as attorneys in relation to property. That is good, except, of course, if this deals with families where, for instance, the husband, or wife, or partner—one of them—is mentally incapable and the other needs to deal with the property that they may jointly own.

I thought that this was the sort of clause that could trip up people who have an enduring power of attorney and believe they can do what they need to do. It is a measure that will require advice, particularly in relation to subsection (1)(c)(i), which states that an attorney may benefit in certain circumstances “if the attorney and donor are married to, or in a civil union or de facto relationship”—whatever that means—“with, each other, and are living together and sharing their incomes”. So in other words, if one of them is living in a rest home or a hospital, then they are not living together and sharing their incomes. Many of us will know of many married couples, de facto partners, civil union partners, and others who do not actually share their income. So they would not be able to benefit from this provision. They will not be able to use it.

Paragraph (i) goes on to state the circumstances in which the attorney in such a relationship may benefit as being in “any action taken by the attorney in respect of real or personal property that the donor and the attorney own jointly and not as tenants in common:”. Some people remember how the whole joint tenants and tenants in common issue is used, particularly in law. It is one of those things, I think, that those of us who are lawyers and have practised in this area will understand the ramifications of. But it is the sort of thing that could trip up a very well-intentioned person who happens to have a power of attorney for their partner, wife, husband, or whatever and who thinks they are doing the right thing. They could very easily trip on that issue because they have not had specific legal advice that actually pertained to it.

The Law Society will need to make sure that lawyers are aware of this issue, and also, by the way, that legal executives are aware of it. It will be incredibly important that we do not have the unintended consequence of people who think they are doing the right being thing caught up by the fact that they are either not living together now—because, for example, one is in a hospital or a rest home—and not sharing their incomes, or they own the property as tenants in common rather than as joint tenants. I think that issue will need to be very carefully looked at. I hope that the New Zealand Law Society and its branches are able to give people some good advice on it, and to make sure that their members—the lawyers, legal executives, and others—are fully aware of this issue. It will be very important for trustee corporations as well, when they are giving advice.

In conclusion, the National Party supports the Protection of Personal and Property Rights Amendment Bill; we think it is a good bill. After 19 years of enduring powers of attorney, it was time the Act was updated, but no doubt we will have to revisit it at some other stage as circumstances change and people’s lifestyles change, as well.

KATRINA SHANKS (National) Link to this

It is my privilege, once again, to stand tonight and speak to the Protection of Personal and Property Rights Amendment Bill. For those Aucklanders who are still in rush-hour traffic on their way home tonight, I hope this debate is good listening for them. Hopefully, they are not too far away from home. And for those mothers who have just picked up their children from care and have young children in the back of their cars in the traffic jams in Auckland, I hope that they enjoy listening to this debate tonight, and that they are not too far away from home. Many of those mothers, like myself, know what it is like to have children in their cars late at night, and they will be feeding dinner to their children in the back now, some way or another. So I hope that they get home safely and that they are not too far away.

The Protection of Personal and Property Rights Amendment Bill may not affect those women in their cars in Auckland at the moment, but, moving forward, it certainly will affect their parents and their grandparents. I would like to talk about the dates surrounding this bill. Enduring powers of attorney have been around for 19 years—Judith Collins just spoke about that. Judith Collins is deputy chair of the Social Services Committee, alongside Russell Fairbrother, who chaired it. They both did a good job. We worked hand in hand on this and produced good legislation, and we worked alongside the officials, of course, who gave us a lot of help.

I would like to talk about the time frames surrounding this legislation. Enduring powers of attorney have been around for 19 years, as I mentioned just before. In 2001 the Law Commission, or Law Society, did a review—