Page 3659 - Week 12 - Tuesday, 21 November 2006
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But on a close reading of these laws, that statement does not quite ring true. There is very little proactive policing or oversight of powers of attorney. There is not even an obligation to register these documents. In the case of enduring powers of attorney, I think that is an oversight. It is one I will return to later.
The capacity for fraud is still very large. There has not been much of a shift from the previous situation where a person has to have confidence not in the law but in the person to whom they grant a power of attorney over their affairs. The crucial decision is still the one that is made by the person in the first instance—the choice of power of attorney and negotiations on a mutual understanding of what both parties see that role to involve.
It could be that this is unavoidable. People who take on the responsibility of powers of attorney generally do so for altruistic reasons. They are generally not legally trained. They are generally not intent on perpetrating fraud or abuse of their principal. We do not want to make it too difficult or onerous for people to come forward and volunteer to care for their loved ones or to look after those who they recognise need help to organise their affairs in a world that has little patience with people who no longer want to ride in the fast lane at best or, at worst, are in need of full-time care.
Of course, powers of attorney, especially enduring powers of attorney, not only apply to the elderly. Another category of users are people who endure mental illness, either permanently or recurrently. There are numerous ongoing cases where people in these situations find themselves classified as lacking decision-making capacity, even though they have either regained or never lost that capacity in the first place. They are then left with lengthy, hurtful and costly legal processes to regain control of their own affairs. It cannot be easy to fight a costly legal battle when someone else has legal control of your finances. ADACAS has made me aware of two such cases in the last three months alone.
This bill contains some welcome guidelines on when a person does and does not possess legal capacity. It also contains a presumption of capacity, which is also very welcome. In the minister’s presentation speech he also said:
The issues paper examined issues related to powers of attorney and advanced health directives. The Powers of Attorney Bill implements the outcome of the review.
This bill does not really address the issue of advanced health directives at all. I think there is ample evidence that an overwhelming number of elderly people do not want to die hooked up to life-support machines, in chronic pain or doped to the eyeballs and unable to recognise or respond to their loved ones. This bill does not directly give them the right to direct medical specialists to let them die with dignity.
However, it could be that this bill goes some way towards addressing that issue. An enduring power of attorney that contains an express condition that the attorney is empowered and directed to resist intrusive medical life-support procedures may be able to be wielded by a diligent attorney to give effect to the principal’s wishes.
It is usually the case that, once an elderly person has slipped into a condition where intrusive medical life support is applied, they no longer have the capacity to resist it. This is a very real fear for many elderly people. I urge the government to bring the
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