Powers of Attorney Act 2006

Transcription

1 Powers of Attorney Act ORGAN DONATION The legislative provisions 12 Meaning of health care matter In this Act: health care matter, for a principal, means a matter, other than a special health care matter, relating to the principal s health care. Examples of health care matters a power of attorney may deal with 1 consenting to lawful medical treatment necessary for the principal s wellbeing 2 [deleted by Power of Attorney Regulation 2007] 3 Withholding or withdrawal of medical treatment for the principal 4 Legal matters relating to the principal s health care Note.. 35 Things that cannot be lawfully done by attorneys A principal cannot do the following by an attorney under a power of attorney: authorise the attorney to exercise power in relation to special personal matters; authorise the attorney to exercise power in relation to special health care matters. Note Special personal matter see s 36. Special health care matter see s Special health care matters (1) For this Act, each of the following is a special health care matter for a principal: removal of non-regenerative tissue from the principal while alive for donation to someone else;. (2) In this section: non-regenerative tissue see the Transplantation and Anatomy Act 1978, section 4 (1) (Interpretation). In the Transplantation and Anatomy Act 1978, section 4 (1) the following definitions appear non-regenerative tissue means tissue other than regenerative tissue. regenerative tissue means tissue that, after injury or removal, is replaced in the body of a living person by natural processes of growth or repair.

2 Schedule 1 General principles for enduring powers of attorney 1.11 Health care (1) An individual is entitled to have decisions about health care matters made by an attorney in the way least restrictive of the individual s rights and freedom of action; and only if the exercise of power (i) is, in the attorney s opinion, necessary and appropriate to maintain or promote the individual s health and wellbeing; or (ii) is, in all the circumstances, in the individual s best interests. (2) An individual s wishes in relation to health care matters, and any information provided by the individual s health care provider, must be taken into account when an attorney decides what is appropriate in the exercise of power for a health care matter. The Problem Simply stated section 35 of the Powers of Attorney Act 2006 (New Act) prevents an attorney donating organs (non-regenerative tissue) on behalf of an incapacitated principal. Arguably the New Act also prevents the donation of regenerative tissue because:- the definition of health care matter requires that it relate to the principal s health care, and donation by the principal lacks the required connection; the donation of regenerative tissue does not promote the principal s health and wellbeing and this breaches clause 1.11 of the General Principles. The Law Society fails to see the justification for this very significant change in the law. If a principal is in full control of his or her faculties the Society is of the view should he or she should be able to, if they wish, specifically authorise an attorney to donate non-regenerative and regenerative tissues in an enduring power of attorney. Under the Powers of Attorney Act 1956 (Old Act) an attorney in the form of enduring power of attorney prescribed by that Act might give the following directions in clause 14:

3 14. I authorise my attorney or attorneys to consent on my behalf to the lawful donation of parts of my body, blood or tissue to another person while I am incapacitated. That clause derives its power from section 13(1)(ii) of the Old Act. It is reasonable to assume that many thousands of people have made enduring powers of attorney containing clause 14. Where is the evidence of attorneys abusing this authority, such as to warrant a change in the law? The fundamental nature of the change effected by section 35 of the New Act is not recognised in the Explanatory Notes to the New Act which states that the existing law is not changed. This is in the Society s opinion is misleading if not wrong! Section 35 of the New Act impacts adversely upon all parties concerned with existing enduring powers of attorney (see comments on section 152 below). Once the New Act commences, for non-regenerative tissue to be donated by an incapacitated principal the consent of the Guardianship Tribunal will be required. The procedures of the Tribunal are elaborate and arguably quite cumbersome, and involve significant expense. This is very appropriate if the issue is not dealt with in a person s enduring power of attorney but in the Society s opinion it is not appropriate where a person has delegated this particular decision to an attorney. The Society s experience is that most principals would normally appoint a very close relative to make that decision on their behalf and be very confident that the attorney would make the appropriate decisions. (c) The Solution 1. That section 37(1) of the New Act be repealed, and example 2 to section 12 be re-inserted. 2. That the Act make it clear that an attorney who is suitably authorised can consent to the donation of regenerative tissue and nonregenerative tissue even if it does not promote the principal s heath and well being or relate to the principal s health care. 2. Transitional Provisions (Retrospective application of the New Act) The legislative provisions 152 Transitional application of Act (1) This Act applies to a general power of attorney or enduring power of attorney whenever entered into (whether before or after the commencement day). (2) However, if a general power of attorney or enduring power of attorney made before commencement day complied with the previous Act when

4 made, the power of attorney is not taken to be invalid only because it does not comply with a provision of this Act about the making of powers of attorney. (3) This section is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies. The Problem 1. As set out above clause 14 of the current form of enduring power permits the donor to authorise the attorney to consent to the donation of parts of my body, blood or tissue. Once the new Act commences on 30 May 2007 existing enduring powers which contain such authorisation will no longer permit the attorney to provide such consent. 2. Existing enduring powers by operation of section 56 (cease to have effect according to its terms), or section 58 (marriage), or section 59 (divorce), or section 62 (bankruptcy of attorney), or section 69 (to the extent inconsistent with later power) may now be revoked in circumstances which did not apply when the power was granted. In addition, the application of the various provisions of the New Act overriding the express intention of the donor in an existing enduring power, may change an existing power of attorney or completely revoke that existing power of attorney. 3. A donee under an existing enduring power who has assumed the obligations of an attorney is now bound by additional legal obligations including the Schedule 1 general principles (section 44), obligations to inform (section 43(2)), conditions attaching to medical treatment and donation decisions (section 46(2); sections 12, 35, 37), and being unable to resign without the leave of the Guardianship Tribunal (once the donor no longer has decision-making power). 4. Donors and donees who sought legal advice when an existing enduring power of attorney was made would have been given legal advice on these matters as the law then stood. Their legal advisors are now under a moral if not legal duty to contact all of their clients and advise them of these changes - in particular where provisions of existing enduring powers will no longer be legally effective, or the power revoked. This is a huge and unnecessary burden (professionally and financially) to impose on members of the legal profession. 5. The Society is concerned when new legislation has retrospective effect. In the case of the New Act the implications of the retrospective operation are potentially enormous. The Society is also concerned that the retrospective application of the new Act may have other undesirable consequences that cannot be readily identified at this point in time.

5 (c) The Solution That section 152 be amended to read as follows: 1. This section applies to a general power of attorney or enduring power of attorney that was in force immediately before the commencement day. 2. The previous Act continues to apply in relation to the general power of attorney or enduring power of attorney despite its repeal. 3. This section is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

6 3. Attorney entitled to a benefit OTHER CONCERNS (NOT URGENT) The legislative provisions 34 Powers of attorney do not generally give authority to benefit attorneys A power of attorney does not authorise an attorney to execute an assurance or other document, or do anything else, that would result in a benefit being given to the attorney unless the power of attorney expressly authorises the giving of a benefit of that kind to the attorney. The Problem 1. Section 34 of the New Act requires a principal to enumerate the benefits an attorney can take by using the words unless the power of attorney expressly authorises the giving of a benefit of that kind to the attorney. It is common when a power of attorney is given between close relatives especially couples that the principal wishes to allow the attorney to get a benefit of any kind without enumerating exactly what those benefits are exactly. 2. In existing powers of attorney it is common for a principal to give an attorney the right simply to take a benefit. That power is given in the prescribed form used in NSW. Because the New Act has retrospective operation those provisions in existing powers of attorney may now not operate because the benefits the attorney can take are not enumerated. (c) Recommendation In section 34 remove the words of that kind. 4. WITNESSES The legislative provisions 19 Formal requirements for powers of attorney (1) A power of attorney must be signed by the principal; or by the direction, and in the presence, of the principal, by someone eligible to sign for the principal. Note See s 20 for who is eligible to sign for the principal. (2) The power of attorney must

7 be signed and dated by 2 adult witnesses in the presence of the principal and each other; and contain a certificate signed by each witness in accordance with section 22. Note Section 21 sets out who can be a witness to a power of attorney. 21 Who can be a witness? (1) A person cannot be a witness to a power of attorney if the person is a person signing the power of attorney for the principal; or a person authorised as attorney under the power of attorney; or (c) a child. (2) Only 1 of the witnesses to the power of attorney can be a relative of the principal; or a person authorised as attorney under the power of attorney. (3) For an enduring power of attorney, 1 witness must be a person authorised to witness the signing of a statutory declaration. 22 Certificates by witnesses to powers of attorney (1) If a power of attorney is signed by the principal, the power of attorney must include a certificate signed by each witness stating that the principal signed the power of attorney voluntarily in the presence of the witness; and at the time the principal signed the power of attorney, the principal appeared to the witness to understand the nature and effect of making the power of attorney. Note A principal must understand the matters in s 17 to understand the nature and effect of making a power of attorney. However, in the absence of evidence to the contrary, the principal is taken to understand the nature and effect of making the power of attorney (see s 18). (2) If a power of attorney is signed by a person for the principal, the power of attorney must include a certificate signed by each witness stating that the principal directed the person to sign the power of attorney for the principal; and the principal gave the direction voluntarily in the presence of the witness; and (c) the person signed the power of attorney in the presence of the principal and the witness; and (d) at the time the principal signed the power of attorney, the principal appeared to the witness to understand the nature and effect of making the power of attorney. The Problem 1. Section 21(2) permits a relative of the principal or of the attorney to be a witness. The Society s view is that all witnesses should be

8 independent of the principal. This reduces the risk of powers of attorney being given by principals to inappropriate attorneys or on terms that are not prudent. It is unsatisfactory that the qualified witness may also be a relative. 2. The Society fails to see why both of the witnesses and in particular the unqualified witness needs to provide the certificate required under section 22(2). Surely the reason for having a qualified witness is that this person has the ability to make the assessments required. In practice for lawyers the usual witnesses to an enduring power of attorney are the solicitor and that solicitor s secretary. The New Act will require the secretary (or other unqualified person) to be present at all times during attendances on the principal and oblige the secretary to make an independent assessment of the matters in section 22(2) and if need be by interrogating the Principal to satisfy compliance with section 22(2). Further if a power of attorney is challenged through the courts the unqualified witness may be cross examined about the matters contained in that person s certificate. It seems to the Society that the responsibility and potential liability imposed on the unqualified witness is not justified or appropriate. It may lead to lawyers adopting a practice that powers of attorney need to be witnessed only by two lawyers because of the high level of responsibility imposed on witnesses. In any event the new requirements may considerably increase the time to prepare and execute powers of attorney and hence the legal fees associated with powers of attorney. 3. The Society notes that currently such certificates are not required for wills, advanced health care directives or binding death benefit nominations in relation to superannuation. In these circumstances it seems anomalous that certificates are required for powers of attorney. It will cause particular difficulties for solicitors in practice as it is common for clients to discuss their needs in relation to wills, and death benefit nominations at the same time as they discuss powers of attorney. The unqualified witness will need arguably to be present at all times during these private and very personal conversations. This requirement will undermine some elements of the solicitor/client confidentiality which is invariably part of these discussions. (c) Recommendation 1. That relatives of the principal and the attorney are not permitted to witness a power of attorney. 2. That only the qualified witness be required to provide the certificate under section 22.

9 5. Revocation The legislative provisions 56 Revocation of power of attorney according to its terms If a power of attorney ceases to have effect according to its terms, the power of attorney is revoked. Examples 1 If a general power of attorney is expressed to operate from 1 January 2006 to 25 January 2006, it is revoked at the end of that period. 2 If a general power of attorney is expressed to operate for the sale of a house, it is revoked once the sale is complete. Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132). 58 Enduring power of attorney sometimes revoked by marriage (1) This section applies to an enduring power of attorney if a person is appointed as attorney under the power of attorney; and the principal gets married; and (c) the attorney is not the person the principal marries. (2) The enduring power of attorney is revoked in relation to the attorney unless the power of attorney expressly states that it is not revoked in the circumstances. 59 Enduring power of attorney sometimes revoked by divorce (1) This section applies to an enduring power of attorney if a person is appointed as attorney under the power of attorney; and the principal marries, or is married to, the attorney; and (c) the principal and the attorney divorce. (2) The enduring power of attorney is revoked in relation to the attorney. 62 Effect of bankruptcy of individual attorney (1) This section applies if an attorney under an enduring power of attorney is an individual; and the attorney becomes bankrupt or executes a personal insolvency agreement.

10 (2) The power of attorney is revoked to the extent that it gives power to the attorney in relation to property matters. Note For the extended meaning of bankrupt and personal insolvency agreement, see the dictionary. 69 Revocation by later power of attorney A principal s power of attorney is revoked, to the extent of an inconsistency, by a later power of attorney of the principal. The Problem 1. Existing enduring powers by operation of section 56, 58, 59, 62 or 69 may now be revoked in circumstances which did not apply when the power was granted by virtue of the transitional provisions under section 152. In addition these provisions may operate retrospectively if the relevant act under the power of attorney occurred prior to 30 May This potentially exposes the attorney and third parties to liability they would not otherwise have had. 2. It is unclear in what circumstances an enduring power may under section 56 cease to have effect according to its terms and thereby be revoked. Arguably, as a consequence of the application of various provisions of the New Act which overrides the express intention of the donor in an existing enduring power, such power would be revoked. 3. The donor should have the same control under section 59(2) in relation to a divorce as is afforded in section 58(2) i.e. the power to express in the power of attorney that it is not revoked in these circumstances. 4. It is not clear what the intended effect is of section 69. Which new powers of attorney are inconsistent with existing powers of attorney? If a principal gives a wide power of attorney to X is a new power of attorney to Y in similar terms inconsistent? If a principal gives a wide power of attorney to X but later gives a restrictive power of attorney to X is the earlier power of attorney inconsistent? In both cases it may or may not be the intention of the Principal to revoke the earlier power of attorney. (c) Recommendations 1. See the recommendations above regarding the transitional provisions. 2. Repeal section 56 or make its meaning clear.

11 3. Amend section 59(2) as follows: (2) The enduring power of attorney is revoked in relation to the attorney unless the power of attorney expressly states that it is not revoked in the circumstances. 4. Repeal section 69 or make its meaning clear.