Powers of Attorney Amendment Bill 2016

Mr HIBBINS (Prahran) — I rise to speak on behalf of the Victorian Greens to the Powers of Attorney Amendment Bill 2016. I will speak briefly on this bill because it is largely a technical bill, but there are some key issues which I think are worth touching on, particularly in regard to seniors in our community.

The bill amends the Powers of Attorney Act 2014, which was introduced in 2014 and followed the recommendations of the Law Reform Committee, which held an inquiry into powers of attorney, and the report was tabled in Parliament in 2010. That act consolidated legislative provisions for enduring powers of attorney that fell under the Instruments Act 1958 and the Guardianship and Administration Act 1986 and created supportive attorneys to assist a principal in their decision-making. While that act made important, positive reforms in this area, there were a few problems that have been identified since the beginning of its operation by a number of key stakeholders, including the Office of the Public Advocate, State Trustees Limited, the Victorian Civil and Administrative Tribunal and the Law Institute of Victoria. This bill has been introduced to address some of those concerns.

It is an important area of law given, as has been mentioned by previous speakers, the increased ageing population, the increasing rates of dementia sufferers and the increase in people requiring assistance with legal, lifestyle, financial and medical decisions, which was highlighted by Seniors Rights Victoria in its submission to the parliamentary inquiry into powers of attorney. We know with this increase in seniors in our community there is a larger potential for elder abuse to affect a significant number of people. As was stated in the Australian Law Reform Commission inquiry into elder abuse, it is absolutely critical that we look at providing better safeguards for people from this abuse.

We know about elder abuse from submissions put forward by Seniors Rights Victoria that financial abuse is significant and is often committed against vulnerable older people generally by trusted family members, usually their adult children, and often involves the misuse of a power of attorney. There have been cases where older people have been taken to see a lawyer initiated by their son or daughter and told in the car on the way to the appointment that they need to sign the papers and that if they refuse, their child will no longer provide assistance or care for them.

I note the Seniors Rights Victoria submission to the Royal Commission into Family Violence, which touches on an issue that I had not been aware of, and that is early inheritance syndrome. It states:

This is where an adult child … decides to swoop in on mum or dad's assets in order to pay off their own debts, invest in their own business venture or otherwise spend money that actually does not belong to them yet.

It continues:

The adult child may obtain an enduring power of attorney … and take over their parent's finances in order to benefit themselves and without acting in the best interests of their parent.

I also note in a submission also by Seniors Rights Victoria to the Victorian parliamentary Law Reform Committee inquiry into powers of attorney that they recommend a human rights framework for the prevention of elder abuse. Certainly under the Charter of Human Rights and Responsibilities Act 2006 and certainly under recognition and equality before the law, human rights protection is a live issue for many older people, and in the context of power of attorney this is particularly relevant to issues of capacity.

More generally on the issue of power of attorney we do need 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 make sure not only that those who are appointed as attorneys are the best qualified people to act in the principal's best interests but also that the attorneys receive all the support they need to fulfil their duties and that their powers are clear. That is what this bill aims to do.

The key provisions within this bill include clarifying the scope of the powers of an attorney appointed under an enduring power of attorney, providing greater consistency in the processes for revoking an old enduring power of attorney and providing for the appointment of alternative attorneys and alternative supportive attorneys. It also amends the Privacy and Data Protection Act 2014 so that a supportive attorney can access information on behalf of the principal. The Greens support these amendments as they do enhance the operation of powers of attorney.