Hon RUTH DYSON (Minister for Senior Citizens) Link to this
I move, That the Protection of Personal and Property Rights Amendment Bill be now read a third time. This legislation amends Part 9 of the Protection of Personal and Property Rights Act 1988. This part provides for people to appoint attorneys to act for them on personal care and welfare and property matters, should they lose mental capacity or the ability to communicate through accident or illness.
The bill strengthens the provisions relating to enduring powers of attorney, or EPAs, in order to protect people who, by reason of their heath, have to rely on other people to make decisions for them on welfare and/or financial matters. More specifically, the bill addresses the issues that were first raised by organisations concerned about the abuse of older people—abuse that could be prevented by better provision of safeguards in the legislation. These concerns were identified by the Law Commission in the first instance. The commission undertook consultation, and in 2001 proposed changes to Part 9 of the Act. Further consultation was undertaken, led by the Office for Senior Citizens in the lead-up to the amendment bill, and, of course, again during the Social Services Committee process.
Before looking at the specific amendments, I would like to emphasise two important themes that underpin this bill. The first is that the interests of the donor are paramount in all aspects and applications of powers of attorneys. The second is that even where a donor loses capacity and the decision-making role is taken over by the attorney, the donor still has the right to be consulted, and the attorney has a duty to encourage the donor to continue to make decisions as he or she is able. This recognises that being certified as mentally incapable does not mean that a donor does not have a view, or is incapable of expressing a view, on any aspect of his or her life.
To help the House understand what this bill achieves, I will take the problems identified with the current law and explain what the bill does to address them. To ensure that enduring powers of attorney are not drawn up at the point where people are losing capacity, the bill requires that when drawing up an enduring power of attorney, the donor’s signature must be witnessed by a lawyer retained independently of the attorney who must explain to the donor the effects and implications of the enduring power of attorney, and his or her rights. The witnessing lawyer must also certify that he or she has no reason to believe that the donor lacks mental capacity. Officers of trustee corporations and trained legal executives who work in legal practices can also carry out the witnessing provisions. This process will also allow the donor to express his or her wishes regarding various terms and conditions, which will be included in the form of the enduring power of attorney and will prevent external parties with mischief in mind from influencing the terms of the enduring power of attorney in favour of the attorney.
The implementation of the bill provides the opportunity to revise the forms of enduring powers of attorney so that they are much more helpful and responsive to the needs of people drawing them up. The bill will ensure that donors are provided with the information they need about the powers they are conferring on their attorney, and their right to revoke an enduring power of attorney while they are mentally capable. To make this possible for a donor who has lost mental capacity temporarily, section 100A, inserted by clause 15, now specifically enables a donor to suspend an enduring power of attorney without revoking it. Where there are questions as to the donor’s mental capacity in making such a suspension, his or her mental capacity can be determined by a relevant health practitioner.
The bill includes the presumption of donor competence, so that donors are not to be assumed to have lost mental capacity unless this is clearly shown. The way a person may imprudently manage his or her property affairs, or make personal care and welfare decisions, cannot be used as evidence that the donor has lost that capacity, and neither can special patient status under the Mental Health (Compulsory Assessment and Treatment) Act 1992. The bill will require an attorney for property affairs to keep records of each financial transaction for which he or she is responsible as an attorney and provide those records to persons specified for that purpose in the enduring power of attorney. People will be encouraged to identify what accountability arrangements they want to apply once the enduring power of attorney becomes operational.
It is now made very clear in this bill that attorneys will not be able to make personal care and welfare decisions for a donor unless, and until, the correct process has been followed. For insignificant personal care and welfare decisions, if the attorney believes on reasonable grounds that the donor is mentally incapable, he or she is able to exercise the power of attorney. For significant personal care and welfare decisions, such as admission to care or relocation, there must be a certificate from a health practitioner, or a determination of the Family Court that the donor is mentally incapable, before the attorney can exercise those powers. An attorney under the enduring power of attorney will not be able to act in property matters unless the donor is medically certified or determined to be mentally incapable, except where the attorney was authorised to act in this area when the enduring power of attorney was created. The requirement inserted by the bill that the donor will be consulted applies to all decisions the attorney makes—significant or otherwise.
Concerns about how to trigger the Family Court’s power to intervene are addressed through three measures. The first is the inclusion of a list of appropriate persons able to access the Family Court in any case, without having to obtain leave of the court. This list includes the coordinators of the 25 Elder Abuse and Neglect Prevention services, which are funded by our Government to offer assistance in the prevention of abuse of older people. This means that concerns about an attorney’s actions can be more easily brought to the attention of a Family Court so that a donor’s situation can be investigated. The second, and also of assistance in situations of misuse of enduring powers of attorney, is the wide experience of the Family Court in dealing with complicated matters involving differing views between family members. The third, and this is not a matter arising directly from the bill but is certainly relevant, is the additional resources that our Government has put into the Elder Abuse and Neglect Prevention services. In Budget 2005 our Government increased funding for these very important services from $842,000 a year to $1.5 million ongoing. Elder Abuse and Neglect Prevention services are provided throughout New Zealand by Age Concern and a range of other organisations. These services do a wonderful job of providing assistance to victims of elder abuse, including abuse that has arisen from the misuse of enduring powers of attorney.
I am aware that Age Concern and other service providers are very pleased that this House has recognised the issues of misuse of enduring powers of attorney arising from Part 9 of the Act, and they very much welcome the changes that are going through the final stages this evening. In response to the excellent submissions received from Age Concern and other older persons advocacy groups, this bill includes a provision for these amendments to be reviewed in 5 years’ time, and for a report to be prepared on the effectiveness of these changes and whether further changes are required.
Once the passage of the bill is completed, there will be 12 months for the changes to be implemented. Implementation will include redrafting the different forms of enduring powers of attorney that are currently in the schedule of the Act, as well as the forms to be used for certifying compliance with the new witnessing requirements of the legislation, and for medical practitioners to certify mental incapacity. These forms will be prescribed in regulation so that they can accommodate the evolution of legal and medical practices and tests. Other forms and guidelines will ensure that appropriate processes are observed, and will be drafted.
Lastly, but by no means least, work will be undertaken by the Office for Senior Citizens to ensure that people become aware of the changes and how enduring powers of attorney can be used to prevent difficulties from arising in the future, and to address difficulties when they occur. Entering into an enduring power of attorney is a very sensible precaution for New Zealanders to complete at any age. It is not just the prospect of loss of capacity in older age that can bring an enduring power of attorney into play, but the possibility of injury, illness, or disease. It is better for people to make their own decisions about who should protect their interests and represent them than for the courts to be called on to appoint a welfare guardian or property manager, using other parts of the Protection of Personal and Property Rights Act.
I conclude by expressing my appreciation of the thorough and comprehensive consideration that members of the Social Services Committee gave to this bill. Also, I acknowledge the huge amount of work that the officials from the Office for Senior Citizens and the rest of the team from the Ministry of Social Development devoted to the passage of this bill, and members of other parties who gave support for its progress. I commend this bill to the House.
Dr PAUL HUTCHISON (National—Port Waikato) Link to this
Thank you, Mr Deputy Speaker, for the opportunity to speak on this Protection of Personal and Property Rights Amendment Bill. As the Minister for Senior Citizens has described, it is a very important bill to protect particularly those who are elderly or who may be suffering from a disability or mental incapacity.
There are several somewhat curious aspects about the genesis and evolution of this bill, but I too personally want to say how well the parties worked together. I was struck, of course, by the humility of the chairman, who described his chairmanship of the Social Services Committee as excellent. Nevertheless, we did work very well together, and I think Russell Fairbrother did display a degree of excellence on this occasion.
Christopher FinlaysonDr PAUL HUTCHISON Link to this
It is hard to believe, my colleague says. Never mind.
The important thing I was going to say is that this Act has not been reviewed since 1988. The Law Commission reported in 2001 and its findings have not been taken up by the Government for 6 years. All New Zealanders should regard that as a very serious omission, because this is a sensible bill that is being supported by the Opposition. The delay by Labour has meant that a large number of disabled and mentally incapacitated people have not had the benefits of its upgrade. I believe that that is very serious. Once again, it is an indictment on this Labour Government.
I agree that some of the submissions were excellent. One in particular came from members of the New Zealand Institute of Legal Executives, who pointed out that they have been very involved in helping with the paperwork regarding signing enduring powers of attorney and that they would be eminently capable of doing so themselves. All parties saw that this was appropriate, and, indeed, members of that group now have that power. I think they pointed out that, on average, they do this two to three times a week—up to 200 times a year—and that they are probably the most competent of anyone to carry it out. So this was a very practical and useful thing.
As far as I am aware, one aspect that has not come up in the debate is a submission received from members of the family law section of the New Zealand Law Society. I am concerned about it for a variety of reasons. The first is that the submissioners state that although the proposals from the Government made in the paper in some respects go beyond what is recommended by the Law Commission, they are disappointed the proposals do not go further. They state that the proposals would significantly advance the rights and interests of donors in respect of the establishment and activation of enduring powers of attorney, but that significant risks would still be attached to the operation of enduring powers of attorney by unscrupulous attorneys. They say—and this is the Law Society itself—that it has been suggested that even in some jurisdictions with a registration system, between 10 and 15 percent of enduring powers of attorney are operated improperly or fraudulently. What I was concerned about was that they went on to say that although the section was not aware of any research-based statistics in New Zealand, anecdotal evidence suggested that abuse or fraud by court-appointed managers and welfare guardians would be on a very limited scale, and, certainly, substantially less than the abuse by attorneys under enduring powers of attorney. In my view the important point is that according to the Law Society and, as I understand it, some of the academics, there is no good academic research of an evidenced-based nature regarding this bill.
I think that if indeed there is to be a review in 5 years’ time, it would be incumbent on the Minister to ensure that there is in train careful monitoring of the new amendments and some evidence-based research as to what is actually going on. I think my colleague Judith Collins pointed out that these amendments are certainly not going to be the last changes to the Act. It will need continual progression as things change over time. I was very glad to see that the Minister put in a Supplementary Order Paper to make sure that if an individual was no longer mentally incapable, then there were opportunities to suspend the attorney’s authority to act under the appropriate power. Obviously, we support that amendment.
At the end of the day the paramount issue is that the interests of the donor are kept right at the forefront, and the attorney has a duty to encourage the donor to make decisions as he or she is able. National supports this bill in its third reading and is very glad to do so.
RUSSELL FAIRBROTHER (Labour) Link to this
I too want to reflect the compliments made by the Minister for Senior Citizens, Ruth Dyson, in her third reading speech to the officials who assisted the Social Services Committee, and also to the committee members who worked collaboratively on what was seen as a common desire to tackle some of the problems inherent in enduring powers of attorney.
I do not think it would be overstating the case too much if I said that enduring powers of attorney are subject to misuse, such as embezzlement. It is not overstating the case, because that is the exact word used by the Laws of New Zealand on the subject at paragraph 162. The instances of attorneys helping themselves to the donor’s belongings and failing to put people into institutions and failing to get them out of institutions are catalogued in the , as they are in the case law. I commend to the House an excellent article in last week’s issue of written by Maria Kaszmierow, a barrister, who summarises the changes in the enduring power of attorney and, I think, gives a very effective working summary.
The changes were criticised not on their merits by the previous speaker, Dr Paul Hutchison. He made a complaint that it had taken 20 years since the first Act was enacted for it to be amended. With some tortured logic he attributed the blame to this Government. In an otherwise significant contribution to the House, he failed to see the evolving nature of powers of attorney and of our society generally. In the 20 years—which is not a long time—since the principal Act that we are now amending was passed, there have been large changes that significantly change the thrust of the Protection of Personal and Property Rights Act. Those changes are found in the opening clauses of the amendment bill, which insert new sections 93A and 93B into the principal Act.
I turn briefly to new section 93B. It is an entirely new section that goes at the beginning of Part 9 of the Act, and it talks about presumption of competence. This section makes it clear that a donor is presumed competent until the contrary is shown. That competence allows for a wide range of tolerance for behaviour that may fall below the normal standard of care or diligence of the average person. Just because someone makes decisions that the average person would find strange, it is not necessarily a definition of incapacity. So there always remains with the donor the presumption of competence. In today’s society that presumption of competence, the acceptance of difference, and the allowing of people to age gracefully is a powerful incentive for the way we live our life in this, the 21st century. The addition of section 93B to the principal Act is a major philosophical change to the principal Act, and it opens up the ability of individuals to live their lives, perhaps in a somewhat cantankerous way or in other ways that may upset some, but without invoking the very strong powers available under the enduring powers of attorney.
To balance that out, I want to flick across to the ability to review the attorney’s decision. This is found in clause 18 of the bill. Clause 18 addresses section 103 of the principal Act. Under the principal Act, section 103 gives a very limited power to review an attorney’s decision. In all but one occasion a person seeking to review an attorney’s decision, first of all requires leave of the court before the review by the court can take place. The only person under the present Act who does not require leave of the court is the donor; any other person must first obtain leave of the court before he or she makes out an application for a review. In keeping with the wider powers of general competence the new section 103 opens up the range of people who can apply directly to the court—that is, without going through the process of seeking leave—to review an attorney’s decision. This somewhat reflects the developing case law.
In 1997 Judge John Bisphan, a very experienced Family Court judge in Christchurch, in Hansen v Blaikie considered what the factors were when deciding to exercise his discretion to allow leave. He identified about six or seven factors that he thought should be established before the discretion should be exercised. That was applied again by Judge Bisphan in 2000, and developed further by Judge von Dadelszen only 2 years ago in the Family Court when that erstwhile Hawke’s Bay judge was sitting in Wellington. So there has been a growing case law on the circumstances where someone should be able to apply for leave.
Now we have clause 18 of this amending legislation, which rewrites section 103 of the principal Act and outlines the classes of people who may apply directly to the court. By taking out the intermediate step of having to apply for leave, the people who generally fall within the ambit of the discretion identified by Judge Bisphan back in 1997 are included as people who can apply directly to the court. In short, the people who may apply for leave are the donor, a relative or attorney of the donor, a social worker, a medical practitioner, a trustee corporation, and any welfare guardian. If the donor is a patient in any residential care, then that place may also apply. Other than those very wide categories, any other person may still apply for leave for review. So the regulatory powers of the court have been widened, and access to the court is made available to the people who will have an interest in the welfare of the donor.
I turn to clause 15 of the bill. This adds a new section 100A to the principal Act. The new section 100A relates to the suspension of an attorney’s power to act. Section 100 is a very short section that makes the enduring power of attorney a fairly permanent event. Under clause 15, the new section 100A provides that “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 by giving written notice to the attorney.” It goes on to state: “An attorney whose authority is suspended may not act under the enduring power of attorney unless a relevant health practitioner has certified, or the Court has determined, that the donor is mentally incapable.” The new section 100A reflects the presumption of competence that is contained in the new section 93B, which I mentioned earlier in this speech, and it retains maximum control to the donor who has given an enduring power of attorney but who remains at the time capable of looking after his or her own affairs.
In this amending legislation we have quite a tough penalty provision. There is a $5,000 maximum fine on conviction for persons who knowingly give a false certificate to commit an offence. People who do that are liable on summary conviction to a fine not exceeding $5,000. So there are serious sanctions here for attorneys or individuals who give false certificates. That is important because the certificate given by an attorney is to be taken at face value by institutions or individuals who are asked to act upon it. Although the enduring power of attorney can be revoked, the person then claiming to act under the certificate carries with him or her tremendous responsibilities to act with the utmost integrity.
Enduring powers of attorney will no doubt continue to trouble the law, because they can be easily misused, but this amending legislation reflects New Zealand as it is in the 21st century. The legislation has the presumption of competence and it has tougher regulatory controls on attorneys so that they fulfil their responsibility with the utmost good faith and fidelity.
JUDITH COLLINS (National—Clevedon) Link to this
That was a very worthy and, frankly, quite dull contribution from the member who has just resumed his seat, Russell Fairbrother. Certainly the Protection of Personal and Property Rights Amendment Bill is a good bill and the National Party supports it. Of course, it is quite stunning now to think that 19 years ago the then Labour Government considered that for some reason an attorney would not necessarily have to keep financial records when he or she was in charge of a donor’s property. I would have thought that was a pretty basic requirement, and I think that most members in the House, and certainly the public, would think that if a person is put in the position of being an attorney for someone who is incapable of keeping and managing his or her own affairs, the attorney would need to keep some sort of financial record of what he or she is doing on someone’s behalf. Certainly, one would expect that. Unfortunately, that was not done. It has taken 19 years for that to be corrected.
I would like to hear from the Government exactly what sort of educational requirement there is at the moment. Is the Government advising the Law Society and people out there in the community who are attorneys on behalf of their relatives and family members that they will need to keep financial records, having had 19 years of not having to keep one financial record? That seems to me to be something that is sadly missing from the bill. It would be very good for people to know what their requirements are. Most of us who are asked to be attorneys for people, particularly under the enduring power of attorney system this bill is meant to deal with, want to know what the rules are. If we are not told what they are, then it is not very good to expect people just to know. Fortunately, most people spend their life getting on and living, earning income, and paying the taxes that keep the country going; most people do not think about what is happening in this place. They do not know about the Protection of Personal and Property Rights Amendment Bill.
It is incredibly important that we let people know what their new requirements and obligations are. If we do not, then they are hardly to be blamed for not knowing. Unfortunately, the law does not excuse ignorance of the law. There may in the future be some people who are not aware of their obligations and who end up being in a very difficult position because they have acted in accordance with the law for the last 19 years without anyone telling them otherwise. I would be very interested to know from the Government and from the Minister in charge of this bill—whoever that might be; I think it is the Minister of Justice, Mark Burton, wherever he may be—just what the Government intends to do to advise people of their new requirements.
My colleague Chris Finlayson says we should not expect answers from the Minister. I must say to Mr Finlayson that the Minister has been very quiet on this issue—as he is on most issues these days.
Particularly the Electoral Finance Bill. It is incredibly important to recognise that enduring powers of attorney are a very, very important issue. They are the sorts of things we need to put in place. [ Interruption] Unlike the member interjecting from the other side, Ruth Dyson, they are things that I have experience of. They are not to be entered into lightly. They require a tremendous amount of responsibility on behalf of the donee, but at the same time people need to know what their obligations are. I have not seen anything from the New Zealand Law Society stating what the new rules will be. I would like to see them. I hope the society is listening and that it will do something about it, because the last thing we want is for well-meaning relatives and friends to be put in a position where they have breached the law because we have changed it and no one has bothered to tell them.
In conclusion, I would like to say that this bill is a good bill, but we need to let people know what the new requirements are so that they do not unwittingly breach the new rules and do not in their innocence find themselves in a very difficult position with people who may wish to take them on in a legal sense. That is something we need to address.
BARBARA STEWART (NZ First) Link to this
On behalf of New Zealand First I rise to speak on the Protection of Personal and Property Rights Amendment Bill. New Zealand First supports this legislation, as does every other party in this House. That is the best indication that we can ever get that the legislation is non-controversial and is as right as it can possibly be. We have heard from many of the other speakers that this is a very important bill. The bill follows many of the Law Commission’s recommendations. It is timely that after a considerable period this bill has now been reviewed.
We know in this House that elder abuse is a critical social issue and will continue to be so with an ageing population. This bill is designed to prevent the abuse and neglect of older people and people with mental incapacity through the misuse of enduring powers of attorney. It actually strengthens the provisions relating to enduring powers of attorney so that the welfare and rights of vulnerable people are better protected than they have been. Their welfare and interests should always be the first and most paramount consideration. It is absolutely essential for any society to ensure that vulnerable and disabled people have the greatest possible protection under the law in relation to establishing enduring powers of attorney, that the person’s wishes are carried out, and that his or her personal care and welfare is safeguarded as much as it can be.
I have seen first hand that the role of enduring power of attorney is a huge personal responsibility. I know that my mother carried out this role for my great-aunt when she was in residential care in the last few months of her life. I saw the huge amount of thought and action that was involved in ensuring that my great-aunt had the best possible care for her last few months. So it is pleasing to see that this bill tightens the requirements around the creation of an enduring power of attorney. It had to be clarified so that there was no mistake. We know it is a huge responsibility.
This bill tightens the provisions relating to gifting in the context of an enduring power of attorney. Most important, it provides easier access to the courts for anyone with concerns about an attorney’s actions. Many examples were identified by the Law Commission. We need to prevent and deter unscrupulous attorneys from abusing or misusing their authority. We were pleased to see that there is greater transparency with financial records. That is absolutely essential for the family and any lawyers involved. This bill addresses many of the concerns in relation to the misuse or abuse of enduring powers of attorney. It needed to be done. We were pleased to see too that attorneys’ decisions can be reviewed while they are actually acting under the enduring power of attorney.
In New Zealand First we approve of the limit imposed in the bill on the number of medical examinations needed to determine a loss of capability. A person does not need to be sent to multiple doctors to be deemed mentally incapable—and neither should they.
We are pleased to see that the Government has invested quite considerably in the resources and services for elder abuse. It is very necessary. We know that Age Concern welcomes the changes that have been made in this bill. A number of cases that have been brought to Age Concern’s attention are attributable to the misuse of enduring powers of attorney. I would say that no one in this House could approve of that.
In conclusion, New Zealand First is very happy with the changes that have been made. We know that this bill is a very important measure. We are dealing with people at the most vulnerable stages of their life. New Zealand First supports this bill. We believe that it is the correct measure at this point in time.
NANDOR TANCZOS (Green) Link to this
I rise on behalf of the Green Party to make just a brief contribution to this debate. A number of things have already been said on the Protection of Personal and Property Rights Amendment Bill, and members have already canvassed the arguments particularly well. I will simply reiterate that the Green Party supports a couple of things in particular, in relation to the bill. One is around the presumption of competence, which members have referred to previously. As has been said, this is a philosophical shift and one that we thoroughly approve of. Simply because someone has made use of the ability to grant an enduring power of attorney it does not mean that he or she should be presumed to be incapable or unable to understand their affairs or make any decisions in regard to them—in particular, we support the provision that a person must be presumed to be competent to manage his or her own affairs, have the capacity to understand the nature of decisions, foresee the consequences of decisions, and communicate decisions about matters unless the contrary has been shown. New section 93B(2), as inserted by clause 6, states: “A person must not be presumed to lack the competence described in subsection (1)(a) just because the person manages or intends to manage his or her own affairs in relation to his or her property in a manner that a person exercising ordinary prudence would not adopt in the same circumstances.”
Well, there were probably a number of occasions when I have managed my own affairs in a way that a person exercising ordinary prudence might not have done. Nevertheless, I still think they were good decisions.
Hone HarawiraI thank Mr Harawira.
I think it is important that the bill recognises that people may choose to exercise their affairs in various ways. Some people can make eccentric decisions; there is nothing wrong with that. We like a bit of eccentricity. It adds a bit of spice, variety, and flavour to life—and there is no reason that a person should be denied the ability to behave eccentrically with regard to their own affairs. So it is important that this provision is in place. Similarly, it is also true that someone can be without competence temporarily, but that situation can change. We think it is important that that factor is recognised in the bill, and previous speakers have also mentioned this point.
Before I finish there are just a couple of other things that I will touch on quickly. One is in relation to new section 98A, in clause 12, which talks about the exercise of enduring power of attorney. New section 98A(2) states: “The paramount consideration of the attorney is the promotion and protection of the welfare and best interests of the donor, while seeking at all times to encourage the donor to develop and exercise his or her capacity to—(a) understand the nature and foresee the consequences of decisions … and (b) communicate such decisions.” That is important. I have perhaps not had the experience of some of the members who have already spoken, but I know of cases where people exercising powers of attorney have behaved in ways that clearly were not in the best interests of the donor but were certainly in the best interests of the attorney. So there needs to be that protection to ensure that the obligations of the attorney are clearly stated and, particularly, that there is an obligation for attorneys not just to passively treat the wishes of the donor but to actively encourage donors to act on their own behalf.
Also, one of the obligations is to facilitate the integration of donors into the community to the greatest extent possible. This is, as has been said, a bit of a mind shift, and it is an important one because, hopefully, we have moved beyond the day when people who need some assistance in one matter are presumed to be incapable of making decisions, or unable to make decisions, on their own behalf or to know what is best for them. This issue cuts across the board. It applies not just in this area but in many others, as well. So we support the bill. We think it is a step forward and, like other members of the House, we look forward to seeing its passage.
TE URUROA FLAVELL (Māori Party—Waiariki) Link to this
Tēnā koe, Mr Speaker. Kia ora tātou. When I rose to talk on the Protection of Personal and Property Rights Amendment Bill at its second reading, I shared with this House my own personal experience and that of our whānau as we had been through the care and looking after of the welfare of my late sister, Hine. I talked about the responsibility of making decisions for someone who has entrusted faith in you, to act on his or her behalf. I believe that the concept of an enduring power of attorney fits pretty well with the values and principles that express a Māori world view. The values that I talked about in that last speech are things that we reflect on in terms of our commitment to kaupapa—such as manaakitanga, whanaungatanga, kotahitanga, kaitiakitanga, whakapapa, and rangatiratanga. These are all essential means of protecting and preserving personal care and welfare. They are values which we in the Māori Party, at least, consider to have universal application. They are values that, if respected and applied, will lead to spiritual, intellectual, emotional, and physical well-being.
It is against all of this background that I must talk about two concerns that have arisen about these values during the life of this bill. The first one is the revelation of the incidence of financial abuse and social neglect that Age Concern has identified many older people being subjected to. What we are talking about here is our kuia, our koroua—the older people. These are the ones whom we turn to for guidance, who maintain our tikanga and dignify our ceremonial protocols; they are the keepers of our culture. These are our leaders, who are supposed to protect and nurture our young, who identify potential, and who sustain and give life to our hauora—our spiritual health. It is not on, from my perspective, that our kōeke should suffer from abuse and neglect at a time in their life when they should be cared for.
The second shocking statement that came through in the course of this bill was a comment made by the member for Rotorua, Steve Chadwick, in response to my kōrero last week. That member suggested that Parliament could not legislate for manaakitanga or kaitiakitanga, and that what was needed instead was trust. OK, well, that is a view, but I believe that this bill, in drawing upon the strength of whānau, in making explicit the obligations of attorneys to act in donors’ best interests, and in motivating attorneys to encourage donors to exercise their own competence regarding their personal care, welfare, and financial affairs, is all about manaakitanga, kaitiakitanga, and trust, as well. Those concepts are not mutually exclusive. One can follow kaupapa and tikanga Māori and recognise Western values of mutual respect, all without conflict. It should not be a case of either-or.
This bill provides us with an opportunity to put into statute what Pākehā academic Jane Kelsey described as her vision for the nation in an address on Waitangi Day 2006. In her speech at Te Tii marae Professor Kelsey stated: “Annie Mikaere has argued that tikanga Maori, with its ethical foundations in whaungatanga, manaakitanga and kaitiakitanga, should provide the basis for law in this land. That makes perfect sense. … As Pakeha, we need to take responsibility for tilling that ground in our families, communities and institutions where we have power. … Despite the Maori-baiting of the major political parties, there is an enormous amount of goodwill and a shared commitment to building a Tiriti-based future in this land.” Building a Tiriti-based future in Aotearoa may very well come about by the type of legislation we see here today, in protecting personal and property rights through the enduring powers of attorney provisions.
The central issue, surely, is how we put legislation in place that better protects vulnerable people. These vulnerable people may be differently abled, they may be Māori, they may be elderly, or they may be unwell. What will be common to all is that their state of general health and well-being leads them to being incapable of making or communicating decisions. The impact of abuse and neglect, which is both hurtful and hidden, can occur to anyone of any ethnicity, any age, or any social grouping. Against all of these variables, the protection and promotion of the rights of people who are not able to manage their own affairs must surely be our united priority. Whether we consider the quality of care we are seeking to encourage as manaakitanga or whether we consider it as trust is really not relevant. What is relevant, surely, is that we commit to doing something to make explicit the desirable standards and relationships that put quality care in place.
A value basis to the decisions we make in this House has never been more apparent than that following the recent killings across the country. Wayne Moore, the acting headmaster for Auckland Grammar school, told the thousand-strong congregation that had gathered to mourn the death of Augustine Borrell: “Our government and politicians, they seem to lack the collective moral strength to be effective, to bring about changes … moral fibre is judged on how well society upholds the dignity of life in the womb, in the home and on the streets.” I say that the concept of an enduring power of attorney, if operating according to tikanga Māori, is all about demonstrating the collective moral strength, the collective moral fibre, to put into practice policy and procedures that give dignity to human life.
There were two other events of recent occurrence that I think have some relevance to the debate we are having on the protection of personal and property rights for those who may be compromised or vulnerable through health and personal conditions. The first was the announcement of a stab-resistant, flame-resistant fabric being modelled at this year’s Fashion Week. In describing the AgResearch initiative, the selling point was that the fabric is able to resist penetration by a knife and is “developed to protect the wearer from the ever changing and sometimes hostile world we live in”.
The second event of relevance was the release yesterday from the National Animal Welfare Advisory Committee issuing a new draft code of welfare for dogs, which outlines the minimum standards of welfare and best practices for anyone responsible for dogs. So, if I am reading it right, in the last 24 hours the nation has responded to the crisis emergency of recent stabbings, shootings, and gang and street violence with the news of a stab-proof vest and a code of welfare for dogs. I am not criticising either of these two initiatives much, but I am repeating what Wayne Moore has challenged us to do—to make the commitment towards creating the quality of moral fibre to uphold the dignity of life in the womb, in the home, and on the streets. Manaakitanga, kaitiakitanga, whanaungatanga, kotahitanga, and rangatiratanga are all elements along the journey towards achieving the moral strength that we require as a nation to know we are committed towards making the changes necessary to bring back the concept of collective caring.
In regard to tiakitanga, the Māori Party suggests that the amendments made in this bill strengthen the legislation on paper so that the personal welfare and rights of vulnerable people are better protected. But what we need to see in person is support and promotion to enable proper protection of the personal and property rights of persons who are not fully able to manage their own affairs.
We in the Māori Party fully support the provisions set out in this bill. The provisions address all of the five types of misuse identified by the Law Commission, and in doing so make clear the obligation of the attorney to act in the donor’s best interests. The key challenge facing us all is to ensure that whānau and family relationships are sufficiently strong enough for the task we are setting, to be effective, and to make the change and difference. It is a task that we in the Māori Party truly believe that Māori and Pākehā alike are up to—that we can draw on our cultural values, our unique concepts of care, and our traditions to ensure that we give priority to the well-being of all.
JUDY TURNER (Deputy Leader—United Future) Link to this
I stand on behalf of United Future to speak to the third reading of the Protection of Personal and Property Rights Amendment Bill. I am a trustee for my mother’s financial affairs. Although that is actually different from an enduring power of attorney, it is an interesting first step.
Currently we, the trustees, advise my mother on the day-to-day management of her financial affairs, always ensuring that she understands her options and ensuring that her wishes are met. This is not because she is unable to make decisions, but, like most people, she likes to bounce her ideas off other people. This journey that we take together means that should she become less able or less competent we will hopefully shoulder additional responsibility, well-versed in a clear knowledge of her preferences. My role is counterbalanced by other family members who are also trustees, and by a trusted family accountant.
However, this very workable family arrangement does not clarify how we should act should our mother’s health and competence take a turn for the worse. The enduring power of attorney is a very deliberate and specific decision made by donors to empower those who are literally to take up their final say on matters related to their care and the use of their property. This bill strengthens the legal provisions that protect donors at a time when they are probably at their most vulnerable. This is the legal mechanism that one hopes never to have to use.
United Future supports this third reading, and in particular the greater accountability requirements for attorneys. Public education, I think, is an important next step after this bill becomes law. I think that the National member Judith Collins made reference to this in her speech, and I agree with her on this. An enduring power of attorney is a significant option and the public need to be made aware of what this amended Act will now mean for them. Therefore, United Future would like to encourage the Government to make this a priority.
We happily support the bill’s passage, and I would like to finish by commenting on how pleasant it has been to work on a bill that has enjoyed such general support. I thank all those who made submissions at the Social Services Committee, and I also thank those who advised the committee. We are very happy to support this third reading.
KATRINA SHANKS (National) Link to this
It is my pleasure to rise tonight to support the Protection of Personal and Property Rights Amendment Bill. The bill amends Part 9 of the principal Act. This was really the first time the Act had been looked at in 19 years, so it was important that we had a good look at it.
I thank the officials who helped us and guided us through the bill, as well as the members of the Social Services Committee, which was chaired by Russell Fairbrother and deputy chaired by Judith Collins. We worked well on this bill. We worked hard to provide a bill that would protect the most vulnerable in our society, because that is what this bill is actually about. It is about enduring powers of attorney. Those who need those powers to be instated are the most vulnerable in our society—those who are mentally incapable and those who are elderly.
It was very important that we got this bill right, and we spent time on getting it right. It has taken 19 years for the bill to get here. It is looking good, and the Supplementary Order Papers have added a lot of value to the bill, as well.
In fact, this bill came about because of a review that was carried out by the Law Commission in 2001. The commission published a report entitled Misuse of Enduring Powers of Attorney. That report is what started this bill and its amendments, so I congratulate the Law Commission on the report, which started the ball rolling.
The sad thing about it is that it took 19 years for the bill to get to this House, and it has taken 6 years since the Law Commission produced its report in 2001. That seems to be a common theme coming into this House. It has taken some time to get legislation into the House after a review has highlighted that there is a need for change. Two other bills that I spoke on recently have had the same thing—they have been very delayed in getting here. One was the Official Information (Openness of District Health Boards New Zealand) Amendment Bill, and the other was the Broadcasting Amendment Bill. Both of those bills had time delays in getting to Parliament. They have been through Parliament now and that is the important thing.
We should consider that issue. Why is there such a time delay to get these reviews’ recommendations into bills? That issue is something that needs to be addressed, as does the speed at which the reviews’ recommendations are addressed.
The purpose of this bill, as I have stated, is to increase the safeguards against the abuse of elderly and disabled people, who are our most vulnerable. Certain changes came into the bill. One of the changes was about legal executives. The New Zealand Institute of Legal Executives put a fantastic submission before the select committee and talked to us about why legal executives should be allowed to witness a donor’s signature on an enduring power of attorney. The institution put a great case to us, and the select committee listened and changed the bill accordingly to reflect legal executives now being able to witness a donor’s signature.
Certain conditions were associated with the change. One of those conditions was that the legal executive should have 12 months’ experience. Another condition was that they be registered and supervised so that they are able to witness a donor’s signature. That requirement was to protect the legal executives and ensure that they are qualified to witness. National totally endorses that requirement.
We also had submissions from law centres, which were very concerned about the costs of the changes to the enduring powers of attorney. We took those concerns into consideration, as well. The law centres said that with these new amendments, fewer people would get enduring powers of attorney because of the increased cost involved. Those people who are listening tonight and who are concerned about the increasing cost may like to note that the law centres actually do enduring powers of attorney for free. I do not want to inundate the law centres with people wanting enduring powers of attorney, but they do them for free and do a wonderful job in our society.
The other consideration when looking at costs in this bill was whether lawyers in the same firm could witness an enduring power of attorney signature. There was concern that there could be a conflict of interest, but the committee considered that two lawyers in the same firm could witness a signature. That was a major amendment to this bill, as well.
The other concern was in relation to medical certificates, which was quite a contentious issue. The committee decided that medical certificates were not needed to make decisions that are not considered significant on matters of personal care and welfare. Every time somebody with an enduring power of attorney wants to go to do something minor, such as buying groceries, and he or she needs money to do it, the lawyer will not now have to get a medical certificate to state that the person is incapable of doing that. The lawyer can make the decision and just go out to do it for that person. That was a good step forward.
Another concern was that the bill did not require that an attorney be satisfied that the donor is mentally incapable when making decisions on significant matters. We distinguished between significant and insignificant matters. If it is a significant matter, the attorney will now have to be satisfied that the donor is mentally incapable. It was quite important that we make that distinction in the bill.
The donor also has to pay for medical examinations that are reasonably required for the purposes of certifying his or her mental incapacity. That means that if there was a significant issue, the attorney would have to go to get a medical certificate to state that the person was incapable of making those decisions. Incidents were coming through in submissions that this system was being abused. A bit of “medical certificate shopping” was going on to ensure that the attorney would find a doctor who would say a person was medically incapable. The committee decided that the donor would have to pay for only one medical examination, in order to ensure that the abuse was not there any longer.
Another amendment was made that in situations where a donor is unlikely to gain mental capacity, a medical certificate could remain valid indefinitely. That amendment was for those people who have conditions that will deteriorate and who are just not going to get better—and there are many people like that out there. This amendment was to ensure that those people could have a medical certificate that would remain valid until they passed on, so they would not have to keep going back to a doctor and getting certificates when they were not getting any better and circumstances were not going to change for them.
In all, National supports the third reading of the bill. We congratulate the officials and members of the select committee on the good work they have done.