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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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POWERS OF ATTORNEY AND AGENCY (INTERSTATE POWERS OF ATTORNEY) AMENDMENT BILL

Second Reading

Second reading.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:20): I move:

That this bill be now read a second time.

Powers of attorney and agency are dealt with by the Powers of Attorney and Agency Act 1984. This important piece of legislation enables one party to appoint another (or more than one) to act on their behalf during any absence or incapacity.

A number of rules and obligations, particularly of the donee, are set out so the person who might be appointed as a power of attorney has certain obligations and responsibilities to act diligently to protect the interests of the donor and if they do not, they can be liable to pay compensation and the like. It is frequently used as people now may anticipate some deterioration of their own capacity to conduct their own affairs and it is an important voluntary instrument that people can enter into.

A case arose in Mount Gambier within the whole state constituency of legislative councillor the Hon. Michelle Lensink several years ago. It came to her attention that a resident in Mount Gambier had experienced problems when their father-in-law, who had come from Victoria, entered into an aged care facility in South Australia. The Department of Veterans' Affairs refused to pay the facility because they did not have a valid enduring power of attorney. Indeed, they declined to recognise the power of attorney which had been prepared in Victoria.

It is quite foreseeable, of course, that this situation could arise in any circumstance where people might decide to retire from one state to another but this was a particular instance that was found. That circumstance was able to be remedied in another way, but it raised the legal question of how we deal with the lack of mutual recognition of powers of attorney that have been lawfully established in another jurisdiction.

This bill is designed to amend section 14 of the principal act. It will provide for an enduring power of attorney to be valid as long as the powers given under the law of the originating state or territory can be given under the South Australian act. Furthermore, any restrictions made to an interstate enduring power of attorney under the law of the originating state or territory shall apply in South Australia. The three other aspects of this amendment to section 14 provide that an interstate EPA cannot confer any powers on an attorney in South Australia beyond those of a South Australian EPA.

Again, that just provides that, even if the rules surrounding EPAs in the originating state are more generous, they are then, if they are to be applied in South Australia, applicable with the same restrictions that our law applies. Any interstate EPA prescribed by regulation will not be recognised in South Australia and any South Australian legal proceedings or signed documents which adhere to the requirements of the interstate EPA under the laws of the originating state or territory will be considered proof of an enduring power of attorney.

The purpose of this is to ensure that we reduce the risk for individuals and family members who might choose to retire in South Australia, as one example, but who, in any event, currently may be left without any legal advocate to provide for them should they become mentally incapacitated.

Members would be aware that a power of attorney, generally, is the granting of a power to exercise responsibility on the part of another but the general law provides that if the donor becomes incapacitated then the power of attorney cannot be affected, so there is a specific provision for enduring powers of attorney which enables the continuation of the attorney relationship to continue to endure during the period of incapacity of the donor.

This was an important initiative by the Hon. Michelle Lensink. I am pleased to report that, on her corresponding with the Attorney-General on this matter late last year, he responded on 5 February this year to confirm that he would be supporting the bill in the event that there had been no development of legislation that he was considering himself in respect of reform of the Powers of Attorney and Agency Act. He identified a number of areas that had been under consideration by the government, and one of those was to make provision for interstate mutual recognition of enduring financial powers of attorney. To complete that, I should say that, to date, the Attorney has not introduced a bill to cover these matters.

There were a number of other matters canvassed. Members will recall that there was a very extensive inquiry and review conducted, I think from memory by Mr Martyn Evans, on the whole question of powers of attorney and advance care directives. That culminated in legislation to deal with advance care directives which relate to the medical treatment or lack thereof, etc., but did not proceed with the reform in respect of financial powers of attorney. I, for one, was disappointed that that did not occur. It is a complex area and I appreciate that it may need some further consideration but I think it is regrettable that that did not advance. I do not make any criticism of the Attorney on that; another minister had the conduct of that matter.

As I say, all of the financial power of attorney reforms and the like were not proceeded with and only the medical and advance care directive matters were attended to. These matters remain unresolved—a number of issues—but this one in particular is one that the Attorney-General confirmed that he would agree to in the event that they had not advanced their more comprehensive reform.

I commend the bill to the house. It is an important piece of reform, and we look forward to receiving, hopefully soon, from the government another bill to cover some other important matters that the Attorney has foreshadowed that he will cover, most of which I have read, and if they are included in his letter of 5 February, ultimately, then I can at least indicate that they will be welcomed by the opposition.

Ms BETTISON (Ramsay) (11:28): This bill passed the Legislative Council with the support of the government. The need for law reform in the area of financial powers of attorney, including enduring powers of attorney, has been raised over a number of years. Last year cabinet approved the drafting of a bill to reform the laws regarding financial powers of attorney. Instructions were provided to parliamentary counsel and a new bill has been drafted.

The draft bill includes a provision for mutual recognition of interstate enduring powers of attorney. The government appreciates the difficulties faced by South Australians such as adult children managing one or both of their parents' financial affairs in their elderly years. The amendment proposed by the Hon. Michelle Lensink provides for mutual recognition of interstate powers of attorney and, therefore, provides a practical solution to a problem facing South Australians—a problem already identified by this government. On that basis, we do not oppose the passing of this bill.

Mr PEGLER (Mount Gambier) (11:29): I rise in support of this bill. It is an extremely important piece of legislation for the people in my electorate, particularly as we are close to the Victorian border. Many of the people that do business in Mount Gambier actually live in Victoria. Aged people will often come to Mount Gambier to retire, and their powers of attorney are normally registered in Victoria, so they have no jurisdiction in South Australia. I certainly support this bill, as proposed by the Hon. Michelle Lensink, and the mutual recognition of interstate powers of attorney.

Bill read a second time.

Third Reading

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:31): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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