Protection of Personal and Property Rights Amendment Bill

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.

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—

💬 Dr Paul Hutchison: Commission.

I thank the member very much. In 2001 the Law Commission came up with the paper Misuse of Enduring Powers of Attorney, so it has taken a little while for this legislation to get here tonight in 2007. That is 6 years.

I will talk about a submission that we received in the select committee from representatives of Alzheimer’s New Zealand. They talked about looking at the legislation again in 1 to 3 years to ensure that it is still relevant, and that its intent—which was to safeguard and protect those who have enduring powers of attorney, who are the most vulnerable in our society—is relevant and that it is doing the job it should be doing. I think it is a great idea to look at legislation and ensure that it is current in the environment, and that its intention and purpose actually accords with what is happening out there in real life. That is what legislation is about; it is about making it relevant in people’s lives and actually making a difference.

The people from Alzheimer’s New Zealand brought up a couple of interesting things. They brought up the need for a register for enduring powers of attorney—which the committee did not take on board—because there was a discussion about how people can make more than one enduring power of attorney. They can have a number of enduring powers of attorney out there, and no one would be quite sure which was the last registered enduring power of attorney. People might think they have enduring powers of attorney for other people, when they actually have not—they have been overwritten with a new enduring power of attorney. So this organisation came up with the suggestion that a register be put forward for enduring powers of attorney, and that is something we looked at at the time.

Alzheimer’s New Zealand was very concerned about continuing community education and continuing education for the public, so that people would understand the changes in this legislation around enduring powers of attorney. The organisation was also concerned that the people who need the information most actually have access to it, which was a very valid point. The other point Alzheimer’s New Zealand raised was about welfare guardians. The Social Services Committee looked at those issues, and although the organisation’s submission was very well written, we did not take it on board; we kept focused on the legislation that we have produced tonight.

So for those who have just tuned in and are listening to us, I would say that—

💬 Dr Richard Worth: Welcome!

Yes, welcome. Enduring powers of attorney are important for us and for our families, moving forward. It is our pleasure to support this good legislation tonight. Thank you very much.

Clause 1 agreed to.

Clause 2 agreed to.

Clause 3 agreed to.

Bill to be reported with amendment presently.