Powers of Attorney Amendment Bill 2016

Ms PENNICUIK (Southern Metropolitan) — The Powers of Attorney Amendment Bill 2016, which we are discussing this afternoon, is mainly a technical bill. It clarifies some provisions in the Powers of Attorney Act 2014, which came into operation just over a year ago following the enactment of the bill that was introduced in Parliament in 2014. The bill which led to the Powers of Attorney Act 2014 was introduced to implement a majority of the recommendations of the Victorian parliamentary Law Reform Committee report Inquiry into Powers of Attorney. That report was tabled in Parliament four years earlier, in August 2010.

Amongst many things that that bill and the new act consolidated were the legislative provisions for enduring powers of attorney that fell under the former Instruments Act 1958 and those which came under the Guardianship and Administration Act 1986. The act created supportive attorneys to assist a principal in their decision-making. While the act made important, positive reforms in this area, which we supported, a few problems in terms of its operation have been identified by key stakeholders, including the Office of the Public Advocate, State Trustees Limited, the Victorian Civil and Administrative Tribunal and the Law Institute of Victoria following the commencement of the act in September 2015.

This is an extremely important area of the law, especially as we are all living longer — which is a good thing of course, but it also means that more people will be requiring assistance with legal, financial and medical decisions. This was highlighted by Senior Rights Victoria in its submission to the parliamentary inquiry. Unfortunately we also know that the potential for elder abuse to affect a significant number of people is very real. The Australian Law Reform Commission stated recently in regard to its inquiry into elder abuse that it is crucial that we look at providing better safeguards for older people from this type of abuse. Senior Rights Victoria told the Royal Commission into Family Violence about the financial abuse of vulnerable older people, mostly by trusted family members and usually by their adult children, which also commonly involves the misuse of powers of attorney. It is very distressing to know that people behave this way.

We need to ensure that when looking at this type of legislation that we certainly protect the principals who are making these powers of attorney and giving over their rights to make decisions about financial and other matters to a third party or third parties. We really need to do the best we can to guard against the potential for this type of abuse or misuse of powers of attorney.

It is also concerning to note the sometimes unwitting involvement of lawyers in these cases, which also highlights the importance of lawyers in these cases making their own independent inquiries. More generally on the issue of powers of attorney we have to create a balance between looking after someone's interests and making sure they are, as much as possible, still in control of their own decision-making. We have to ensure not only that those who are appointed as attorneys are the best qualified people to act in the best interests of the principal but also that the attorneys, the supporting attorneys and the alternative attorneys have all the support they need to fulfil their duties and that their powers, duties and responsibilities are clear under the act, and that is what this bill aims to do.

In committee:

Ms PENNICUIK (Southern Metropolitan) — Before question time I was just about to refer to the key provisions in this bill, which is a fairly straightforward bill of only 10 pages and 17 clauses. Clause 4 provides that an enduring power of attorney can be confined to financial matters or to personal matters or to matters specified in the actual instrument — so it clarifies the scope of the powers of a particular attorney acting on behalf of a particular person, which had been drawn to the attention of the government. Clauses 5 and 11 clarify that more than one alternative attorney or alternative supportive attorney can be appointed for each attorney or supportive attorney respectively and also that an alternative attorney or alternative supportive attorney can be appointed for more than one attorney or supportive attorney respectively — and I defy anyone to say that three times fast!

One of the questions I would like to ask the minister in the committee stage is just a practical question with regard to keeping track of the number of supportive attorneys and alternative attorneys that are appointed for each attorney or supportive attorney or alternative attorney. How is that practically kept track of? It is a good idea to have the alternative attorneys — for example, if something happens to the principal attorney; they may become ill or they may be overseas or something when they are required to act. So it is a good idea to have these alternatives and supportive attorneys, but my question is really about how they are all kept track of in terms of being appointed by the principal.

Clauses 6 and 15 make it clearer regarding the revoking of old enduring powers of attorney made under the former acts that I mentioned earlier, basically providing that where an old enduring power of attorney or enduring power of guardianship has not been revoked under the act a principal can revoke them using a new procedure but also that the existence of any new enduring power of attorney would automatically mean that any old one is automatically revoked.

Clause 16 amends the Privacy and Data Protection Act 2014 to ensure that a supportive attorney can access information on behalf of the principal as part of his or her role to support the principal in making his or her own decisions.

The main clause the Greens want to raise in relation to this bill is clause 13, which amends section 130 of the Powers of Attorney Act 2014. Clause 13 amends section 130 so that under section 130(1)(b) a person can apply for a rehearing at the Victorian Civil and Administrative Tribunal (VCAT) if the person was given notice of the hearing of the application in the first instance but was not a party to the hearing of the application with the leave of VCAT, or, in the case of the public advocate, without seeking the leave of VCAT. However, while this amendment under clause 13 makes it clear that the public advocate can apply for a rehearing without having sought leave and that a person who was advised but was not a party can seek leave for a rehearing, it does not provide for people to seek a rehearing who truly should be able to.

When we consulted with the law institute it alerted us to situations where, for example, a family member may have a hearing at VCAT to seek to change the scope of a power of attorney or make other changes or even seek to make a gift to himself or herself or use it to pay off a debt without other members of the family — other people who have a special interest with the principal who has made the original enduring power of attorney — knowing. Those other members, in finding out about the hearing, may be of the view that what was sought at VCAT was not in the best interests of the family member who is the subject of the power of attorney and seek a rehearing. However, under the bill, given they would not have been notified in the first instance — maybe deliberately — by the person who was appearing at VCAT, clause 13 as it is worded at the moment would not afford them any right to seek a rehearing at VCAT, when they should have that right.

I did have an amendment drawn up to the effect that if a person has that interest but was not advised earlier of the hearing, they could apply for a rehearing with the leave of VCAT. I circulated that amendment to all parties earlier this week, including to the government, and I have heard back from the government that in fact they are supportive of that amendment, but they raised some issues with me with regard to the way the amendment had been originally drawn up and circulated by me. They have had an alternative amendment drawn up and have run that by me, and I am happy with the alternative.

It was basically to do with the ordering of the subsections of the amended section to make clear the particular provision applying in a case where a person has been notified but has not appeared, a new subsection for a person who was never notified and still wants to apply to VCAT for a rehearing and then a separate subsection applying to the public advocate. So I am happy with the reformulation of clause 13 such that it would now replace the current section 130 in the principal act. In fact I think it will actually make the whole section clearer, which is the purpose of this bill in the first place — to clarify some sections that are not that clear.

I understand that the government will be seeking to move that amendment, which will probably supersede my amendment because government amendments usually go first. I want to assure the house that the aim is to improve the bill and to make sure that we are protecting the interests of the principal person and the people who are looking after their interests in terms of if a mistake has been made in that regard and deliberate subterfuge has been perpetrated by a person. As I was saying earlier, before question time, unfortunately there are some people who may want to do that sort of thing, and we are protecting the principal here — that is, the person who is having their financial and other affairs looked after under a power of attorney.

In terms of the committee stage, I just have that other practical question with regard to the numbers of supportive and alternative attorneys. I have spoken to other parties in the house about the intent of the amendment, and I understand that most people, pretty well everyone, are supportive of the intent of that amendment.

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Ms PENNICUIK (Southern Metropolitan) — I am asking a question on clause 1 because the purpose set out in clause 1(a)(ii) is:

to further provide for the appointment of alternative attorneys and alternative supportive attorneys …

I did pose a question during my contribution about this matter, and the minister gave an answer which posed more questions. So my question really was: under the act and under the amendments made in this bill, the principal can appoint an attorney, alternative attorneys, supportive attorneys and alternative supportive attorneys. That could — who knows? — end up with a lot of people being appointed to those roles.

The minister said to me that, if the attorney was not able to fulfil the role, the principal needed to appoint a different attorney. Well, there may be many occasions where the principal is not capable of doing that, which is the whole point of having an attorney in the first place — to assist in dealing with that person's affairs when they are not capable of doing so themselves. My question was not really about that, but that does raise a question. It raises a question if the attorney is not able to fulfil the duties and the principal is not able to appoint another attorney; then automatically the alternative attorneys are required to step in — I would assume that is the case — and if they are not, then the public advocate would take over.

But my question was more about if a principal, for example, appoints an attorney, then on another occasion appoints an alternative attorney and then on another occasion appoints another alternative attorney and then supportive attorneys, there could be a lot of people who are appointed to these roles maybe not necessarily knowing about each other. What occurred to me was the practical keeping track of who is acting on behalf of that principal person. That is the question, really.

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Ms PENNICUIK (Southern Metropolitan) — If I could just follow up on those answers — and I thank the minister for them — it sounds as if what I thought might be the case is in fact the case, which could make it difficult, particularly if those persons have been appointed by the principal at different times. Best practice might dictate that they all know about each other, but they may in fact not know about each other. I just wanted to clarify also that if the enduring power of attorney lapses, the public advocate would not necessarily automatically take over the affairs of that person. So who would make an application for guardianship in that case?

Ms PENNICUIK (Southern Metropolitan) — Minister, thank you for that answer. Yes, that helps, but it also points to some gaps too. If there is no other family member — for example, if a person does not have a family member to do that or they have a family member who is not taking any interest in doing that — then it is up to the health system, I suppose, to notify the public advocate. In most cases I presume that would happen, but you cannot necessarily know that it would happen, so there is a bit of a gap there.

In terms of best practice regarding the different classes of attorneys that can be appointed by the principal at different times, is there any guidance provided to solicitors with regard to best practice? If principals are appointing an attorney and an alternative attorney, is there any advice to solicitors to make sure the principal knows they should make sure that everyone knows about each other or that they keep a record of that to make things easier when it actually needs to be acted upon?

Ms PENNICUIK (Southern Metropolitan) — Thank you, Minister. I had a look on the Victoria Law Foundation site, but I did not have a look at the Office of the Public Advocate site, so that is good guidance and is reassuring. Of course people might not be acting in nefarious ways, but they may be acting at cross-purposes unbeknownst to themselves. If the principal is no longer able to advise, then people might find themselves caught up and not know what one or the other are doing, so I think it is an important question to have answered.

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Ms PENNICUIK (Southern Metropolitan) — As I mentioned in the second-reading debate, this is an issue that the Law Institute of Victoria alerted us to. We looked at it and thought there was a bit of a gap in terms of the possibility of someone holding a power of attorney or someone appearing at VCAT deliberately not notifying other people who that person knew had a special interest in the hearing going ahead. Without those people even being notified it was going ahead, the outcome of that whole process may not be in the best interests of the principal person. It just makes sure that if that was to happen, there would be recourse for a person who then later finds out that something has happened without their knowledge when they did have an interest. I see it as protecting the interests of the principal.

Ms PENNICUIK (Southern Metropolitan) — Yes, of course that could happen, but the other could equally happen and probably would happen more often. That is why I think it was important. I also point out that they still need the leave of VCAT to be able to have a rehearing. I think that is a safeguard there, that VCAT would have a look at all that, and if it was not satisfied that there was a need for a rehearing, there would not be a rehearing; it is not an automatic rehearing.

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