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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-06-27 Daily Xml
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POWERS OF ATTORNEY AND AGENCY (INTERSTATE POWERS OF ATTORNEY) AMENDMENT BILL

Introduction and First Reading

The Hon. J.M.A. LENSINK (16:00): Obtained leave and introduced a bill for an act to amend the Powers of Attorney and Agency Act 1984. Read a first time.

Second Reading

The Hon. J.M.A. LENSINK (16:00): I move:

That this bill be now read a second time.

This bill amends the Powers of Attorney and Agency Act 1984 which is currently silent on the recognition of interstate enduring powers of attorney (EPA), so this bill will enable EPAs which were made in other jurisdictions to be recognised in South Australia. Mr President, I declare that I have an interest in this as I have an EPA over my mother—one of my sisters and I have been appointed jointly and severally in that role.

There are several instruments that people can use to appoint someone to act on their behalf in their affairs. A power of attorney provides powers for someone else to manage your financial affairs and a person can only grant it when they are of sound mind at the time of the making of the document. A general power of attorney ceases at the time that someone becomes mentally incapacitated but an enduring power of attorney, as the title suggests, continues regardless of mental incapacitation.

An enduring power of guardianship enables someone else to make personal decisions on their behalf under the Guardianship and Administration Act 1993. There are also powers to make medical decisions under the Consent to Medical Treatment and Palliative Care Act 1995. These instruments are known as medical powers of attorney and advanced directives. The Legal Services Commission's Law Handbook and the website provide some very useful information about each of these instruments. That can be viewed at www.lawhandbook.sa.gov.au.

The difficulty arising from lack of recognition in South Australia, particularly of Victorian enduring powers of attorney, was brought to my attention by a constituent in Mount Gambier who experienced problems when his father-in-law entered aged care and the Department of Veterans' Affairs refused to pay the facility because they did not have a valid enduring power of attorney. This gentleman's parents-in-law had been living in Victoria and had done the paperwork some 20 years ago. After they moved to the Mount, the husband's health deteriorated quite quickly and he needed to enter an aged care facility. Because the facility was not being paid by the Department of Veterans' Affairs, things got difficult but, luckily, this gentleman was still able to sign new paperwork otherwise everybody would have been in the proverbial.

The son-in-law made the point when I spoke to him that the couple was, in fact, lucky that they had family around to assist them because this would be a very difficult situation for a widow or widower who did not have family nearby. Since we advised that we were seeking to put this bill out for consultation I have had several people contact me, and one professional services provider based in Mount Gambier advised the following:

We have a client who lives here in Mount Gambier whose mental state has recently deteriorated. Her only next-of-kin are two nieces in Melbourne, and our client is currently spending some time in Casterton Hospital [which is across the border in Victoria].

As we understand it, the nieces are having problems with respect to cross border issues in obtaining guardianship for their aunt.

A lawyer in the South-East has also contacted me to support the bill. He agrees that lack of mutual recognition is a problem and has been for a long time. He advises his clients in the border region that they should do paperwork for both states, just in case. Unfortunately, this increases the expense of documentation so that it is in the order of $500, rather than $200, which is quite an amount of money for any pensioner, in particular.

I have also received feedback that there are similar problems with those other instruments that I mentioned, that is, medical powers of attorney, advanced medical directions and enduring powers of guardianship, and it has been suggested that those relevant acts be similarly amended. In Victoria, South Australian EPAs are recognised through section 116 of the Instruments (Enduring Powers of Attorney) Act of 2003. I have had feedback from Aged and Community Services SA&NT. Mr Alan Graham, who is the CEO of that organisation, says that from their perspective:

…this seems like a very sensible addition to the legislation and is fully supported by this association. We were somewhat surprised that the need for this amendment had not been picked up a lot earlier!

Having scrutinised the draft bill we have no specific comments that we would add to what we consider to be a well drafted amendment Bill.

I thank parliamentary counsel for drafting that. We have yet to receive feedback from Mr Paul Carberry of the Aged Care Association South Australia, but I would be surprised if he did not support it. The Law Society also has a copy of the bill, and we are awaiting their comments as well. I understand that an extensive review of instruments may be underway. However, my reading of the situation is that amending the relevant acts to ensure mutual recognition should be straightforward and would alleviate the difficulties that many people are currently experiencing, particularly in the Mount Gambier and South-East areas.

The bill itself inserts a new section 14 into the act, which is entitled 'Recognition of enduring powers of attorney made in other states and territories'. Subclause (1) states that an interstate EPA is valid so long as the powers given under the law of the originating state or territory can be given under the South Australian act. Subclause (2)(a) states that any restriction made to an interstate EPA under the law of the originating state or territory shall apply in South Australia. Subclause (2)(b) states that an interstate EPA cannot confer any powers on an attorney in South Australia beyond that of a South Australian EPA.

Subclause (3) states that any interstate EPA prescribed by regulation will not be recognised in South Australia. Subclause (4) states that, in any South Australian legal proceedings, signed documents which adhere to the requirements of an interstate EPA under the laws of the originating state or territory will be considered proof of an enduring power of attorney.

I indicate that amendments to those other acts may also be required, and I will look forward to receiving the advice of the Law Society on that. I do hope that the government does not oppose this on the grounds that it has some other review underway. I think the instruments that I have listed probably do require a considerable review, particularly to make some of the wording more user-friendly, but I think that it is a difficult situation. It should be fairly straightforward to sort it out, and I hope that that does not delay the passage of the bill. I commend the bill to the house.

Debate adjourned on motion of Hon. G.A. Kandelaars.

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