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New Zealand Human Rights Commission Submissions |
Last Updated: 27 March 2015
Human Rights Commission
Submission on the
Protection of Personal and Property Rights Amendment Bill
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To
the Social Services Committee
1 March 2007
Contact
person:
Sylvia Bell
Principal Policy and Legal Analyst
Human Rights
Commission
Direct dial (09) 306 2650
Email: sylviab@hrc.co.nz
SUBMISSION BY THE HUMAN RIGHTS COMMISSION ON THE AMENDMENT
TO THE PROTECTION OF PERSONAL & PROPERTY RIGHTS
1. INTRODUCTION
1.1 The Human Rights Commission (“the Commission”) supports the
Protection of Personal and Property Rights Amendment Bill.
Strengthening the
rights of vulnerable people and a legislative presumption of competence, as well
as making more explicit the importance
of an attorney acting in the best
interests of the donor, are consistent with the priorities set out in the New
Zealand Action Plan for Human Rights: Mana ki te Tangata (the Action Plan).
1.2 However, the Commission considers that there are still some unresolved
issues in what it acknowledges to be a difficult and problematic
area.
Specifically, the Commission has concerns about:
2.1 In 2004 the Human Rights Commission published Human Rights in New Zealand Today: Nga Tika Tangata o te Motu (HRNZT) the first comprehensive assessment of how well human rights are recognised and respected in New Zealand.
2.2 HRNZT had found that while older people had the capacity to protect their rights and interests, some required help to meet their needs for care and support because of diminished mental and physical capacity. While the needs of this group were well addressed in most cases, abuse and neglect were not uncommon and occurred even when people were subject to an order under the Protection of Personal and Property Rights Act 1988.
2.3 HRNZT formed the evidential basis for the New Zealand Action Plan for Human Rights: Mana ki te Tangata (the Action Plan). The Action Plan identifies what must be done over the next five years to ensure that the human rights of everyone in New Zealand are better recognised, protected and respected.
2.4 The Action Plan identifies the need to ensure that disabled people are able to express their views and have them taken into account on matters that affect them[1]. It also emphasises the concept of capacity and the need to strengthen acceptance of advance directives so that people can make decisions about their treatment before they become unwell – both matters that resonate with the proposed amendment.
2.5 The suggested changes are also consistent with the approach to capacity reflected in the Convention on the Rights of People with Disabilities. The Convention endorses the notion that people with disabilities should be able to enjoy legal capacity on an equal basis with others in all aspects of life but where support is necessary for this to happen, “safeguards should ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person and are free of undue influence” [2].
3.1 The Commission supports the introduction of the purpose statement as it stresses the proper role of Enduring Powers of Attorney.
3.2 In its report, Misuse of Enduring Powers of Attorney,[3] the Law Commission expressed concern at the “striking philosophic difference” between Part IX and the rest of the Act and the different presumptions of competence that applied. In order to ensure that there would be as little interference with an individual’s autonomy as possible, the Law Commission recommended that section 94(b) be amended so the definition of “mentally incapable” was compatible with the standard in s.12(2).
3.3 Section 12(2) relates to the conditions under which a welfare guardian can be appointed. Section 12(2)(a) makes it clear that any appointment should focus only on the area where the person lacks capacity and that capacity should be “wholly lacking”. The wording has been described as both “stringent” and “clear and emphatic”.[4]
3.4 The wording in s.12(2) speaks of a person “wholly or partly” lacking the capacity to make decisions relating to their personal care and welfare. The Bill would amend s.94(2) so that a donor will only be considered incapable if they lacked the capacity to make a decision about, to understand the nature of, or foresee the consequences of, a decision or they wholly lack the capacity to communicate decisions about their personal care and welfare.
3.5 As the Ad Hoc Committee which drafted the Convention found, it is difficult to define capacity with any precision. Capacity is task and time specific and despite efforts to achieve consensus on what it means, no universal definition exists[5]. It is debatable, however, whether the change contemplated by the Bill is consistent with the standard in s.12.
3.6 The Commission considers that clearer wording is needed to fully reflect the concept in s.12(2)(a) and ensure that a donor is protected against an unwarranted declaration of incapacity and consequent loss of power to manage their own care and welfare.
4. DECISIONS
RELATING TO INCAPACITY
4.1 The Commission understands that it can be difficult to make decisions about a person’s capacity and is supportive of the concept of a relevant health practitioner whose scope of practice includes assessment of a person’s mental capacity being involved in decisions about when an enduring power of attorney comes into effect.
4.2 However, section 94A which deals with decisions about whether a person is mentally capable at the time that an enduring power of attorney is actually created, is less satisfactory. The proposed legislation states that when a donor signs an enduring power of attorney, the witness (who must be an independent lawyer or employee of a trustee company) must certify that he or she has “no reason to suspect that the donor was or may have been mentally incapable” at the time the instrument is signed.
4.3 The Law Commission considered the question of a donor’s competence to create an enduring power of attorney and concluded that decisions about a donor’s capacity could be left to lawyers given their experience in dealing with testamentary capacity in relation to the execution of wills[6]. The Commission does not share this confidence. Although it may well be true of the majority of lawyers, examples such as Dark v. Boock[7] (where an agreement signed by a woman with senile dementia allowing a neighbour to live in her property was set aside as unconscionable) or Re EW [PPPR] [8] (in which Judge Robinson annulled an enduring power of attorney on the grounds that at the time of execution the donor lacked the mental capacity to understand the nature and effect of the power that was being conferred and, in particular, that it authorised the attorney to sell the property) suggest this will not always be case.
4.4 A lawyer will not necessarily have a good appreciation of the donor’s normal personality and therefore not pick up on changes in behaviour that could signal deterioration in capacity. In Dark, for example, the Judge noted [at line 45] that “behaviour that had been foreign to her now emerged” – something that was obvious to her doctor who knew her but not to the lawyer who drew up the document and was unfamiliar with her usual character and behaviour.
4.5 Whether or not a person has capacity (and hence is competent to grant an enduring power of attorney) therefore needs to be judged in relation their habitual behaviour and values. As one commentator has observed[9],
This is a principle more easily respected in theory than in practice, but
is fundamental to both theory and practice. Applying such
a standard requires a
more thorough knowledge of the individual than is normally feasible in a
limited, one-time only encounter.
4.6 Given the effect of an enduring power of attorney, the Commission considers that there should be more stringent conditions for deciding when a donor is capable of granting the power. In Dark, Justice Heron noted that the case should serve as a cautionary tale for solicitors and observed that the best possible practice in such cases was that the signing of such a document should be preceded by a medical examination sufficient to determine “beyond any reservation the contractual or testamentary capacity of the party concerned”.[10]
4.7 The Commission therefore considers a medical certificate of competence should be necessary when a person grants an enduring power of attorney.
5. DECISIONS IN THE DONOR’S “BEST
INTERESTS”
5.1 Section 98A confers the authority for an attorney to make decisions about the donor’s personal care and welfare. The actions and decisions of an attorney have the same effect as if the decisions were made by the donor with full capacity and include decisions about the administration of standard medical care [subject to s.18(c) of the Act: s.98(4)].
5.2 Section 98A(2) includes a “best interests” test. This could well prove problematic since the “best interests” test that is commonly accepted differs from the philosophy of the Act. This is most obvious in relation to medical care. The common law position is that a medical decision will lawfully be in the best interests of a mentally incapable adult if it passes the “bolam” test[11] that is it accords with a practice accepted as proper by a responsible body of medical opinion.
5.3 When a similar issue arose in the United Kingdom, the Law Commission described the common law “best interests” test as overly paternalistic and considered it (because of its genesis in the law of negligence) to be inadequate where fundamental human rights were concerned[12]. In order to overcome this problem the legislation was designed to include certain factors that would need to be taken into account when making an assessment of a donor’s best interests. These included ascertaining the person’s past and present feelings and the factors that the person would consider if they were able to do so – a qualification rather similar to s.54(5) of the Protection of Personal and Property Rights Act 1988 which allows a Court to determine whether a testamentary disposition expresses the “desire and intention of the person”.
5.4 The philosophy of the Protection of Personal and Property Rights Act presupposes that the donor’s welfare and interests will be the paramount concern. The reference to s.18 in s.98(4) and the expanded wording in ss.3(a) and 6 should be sufficient to convey the intention of the legislature and comply with the purpose of the Amendment. Arguably, therefore, including a reference to the donor’s best interests is redundant.
5.5 Section 98 A will also include subsection (4) which would require that the attorney when deciding any matter relating to the donor’s personal care and welfare, gives “due consideration to the financial implications of that decision in relation to the donor’s property”. Presumably this is designed to complement s.97A(2) and to ensure that decisions are not made which give financial considerations precedence over the donor’s needs. For example, to prevent cases such as that quoted in the Law Commission’s report in which a donor was not institutionalised when it was warranted because of the anxiety of the attorney as an ultimate beneficiary of the donor’s estate not to see the estate whittled away.[13]
5.6 Assuming the purpose of the subsection is to ensure that financial considerations do not take precedence over the donor’s welfare then this is not achieved by the current wording. Rather the contrary - the section suggests that taking such considerations into account might well be permissible. The Commission suggests that the wording is changed to better protect the donor from financial mismanagement of their property in such circumstances and to reflect the concepts in s.97A(2).
6. ROLE OF THE ATTORNEY
IN FOSTERING DONOR’S CAPACITY
6.1 Section 98 states that an enduring power of attorney comes into effect when the donor becomes mentally incapable. As a result of the clarification that the amendment purports to make, this is deemed to be when a person lacks the capacity to make decisions about their personal care and welfare, or understand or foresee the nature of such decisions or wholly lacks the capacity to communicate them: s.94(2). This is consistent with ensuring that an attorney can only act when a donor totally lacks capacity.
6.2 However, s.98A(2) obliges the attorney to encourage the donor to develop and exercise his or her capacity to understand the nature of decisions made by the attorney and communicate such decisions; ss(3)(a) further requires the attorney to encourage the donor to act on his or her own behalf where possible. Section 97A which applies to powers of attorney in relation to property also imposes an obligation on the attorney to develop the donor’s competence to manage his or her own affairs.
6.3 The purpose of these provisions is to create consistency with the rest of the Act and, in particular, s.18 (3) and (4)[14]. However while this may be relevant in terms of financial matters it is difficult to see how it will work in relation to matters of care and welfare. If a donor needs to be wholly (as opposed to partly) mentally incapable before an enduring power of attorney can be invoked, it is difficult to see how they will be able to understand the nature of the decision let alone communicate them[15]. The Commission therefore suggests that thought is given to whether s.98A(2) is necessary.
7. A REGISTRATION SYSTEM FOR ENDURING POWERS OF
ATTORNEY?
7.1 In its initial discussion paper, the Law Commission raised the idea of a public registration system as a safeguard against abuse, noting that such systems were in place in jurisdictions such as the Northern Territory and Tasmania and the concept itself was supported by the English Law Commission[16].
7.2 The rationale behind the introduction of a register is that removing the powers from the private to the public domain was not so much that it would prevent misfeasance but that it would address the difficulty that many institutions (such as rest homes) currently encounter in identifying whether or not an enduring power of attorney exists. It would also prevent the situation identified in the Law Commission’s paper in which a person may visit a number of lawyers creating a series of inconsistent powers. The Law Commission considered that neither was reason enough to warrant creating a register in New Zealand, arguing that a register would be expensive, constitute an invasion of privacy and create yet another bureaucracy[17].
7.3 The Commission is less convinced that these issues should militate against developing a register for enduring powers of attorney. On the whole the Commission considers that there are considerable advantages in the transparency that would result.
7.4 When an institution cannot locate an enduring power of attorney for a mentally incapable person, it often resorts to applying for a Welfare Guardianship order. This can be more intrusive than an enduring power of attorney and less likely to reflect the wishes of the subject person as it would be done on behalf of the individual whereas an enduring power of attorney reflects the person’s own wishes.
7.5 The Commission therefore recommends that further thought be given to the establishment of a register which would introduce some independent oversight on the actions of attorneys[18]. Enduring powers of Attorney are after all likely to assume more importance with the increase in the older population.
8. CONCLUSION
The Commission
recommends that:
[1] New Zealand Action Plan for
Human Rights: 3.3 at 17
[2]
Convention on the Rights of Persons with Disabilities: A/61/611: 6 December
2006; article 12(2)
[3] New
Zealand Law Commission Misuse of Enduring Powers of Attorney (NZLC R71,
Wellington, 2001)
[4] In the
Matter of M [1994] NZFLR
164
[5] Sabatino, C.
Representing a client with diminished capacity: How do you know it and what
do you know about it? Jnl of the American Academy of Matrimonial Lawyers
Vol. 16, 2000 at 482
[6] Supra (fn
3) at para 25
[7] [1991] 1 NZLR 496
[8] (1993) 11 FRNZ
118
[9] Sabatino (supra fn 5) at
485
[10] Supra (fn 6) p.500, line
45
[11] Re F (Mental Patient:
Sterilisation) [1991] UKHL 1; (1990) 2 AC 1
[12] Luttrell, S. Making
decisions: implications for practice of the Government’s proposals for
making decisions on behalf of mentally incapacitated
adults in England and
Wales. Age and Ageing 2001;
30-S1:7-9
[13] Supra (fn 3) at
para 18
[14] Supra (fn 3) at
21
[15] See also critical
evaluation of the Law Commission’s recommendations in Kent, R. Misuse
of Enduring Powers of Attorney [2003] VUWLRev
31
[16] New Zealand Law
Commission Misuse of Enduring Powers of Attorney (NZLC PP40, Wellington,
2001) at para 24, p.7
[17] Supra
(fn 3) at para 40, p.18
[18] This
is not the same as the role of the Family court which requires proactive
intervention and can be difficult for people who are
unable to act on their own
behalf.
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