Seanad Éireann - Volume 144 - 19 July, 1995

Powers of Attorney Bill, 1995: Second Stage.

[1241] Question proposed: “That the Bill be now read a Second Time.”

Minister for Equality and Law Reform (Mr. Taylor): I take this opportunity of formally congratulating you, a Chathaoirligh, on your elevation to this important position and to wish you the best of success and luck in it.

An Cathaoirleach: Thank you.

Mr. Taylor: This Bill will commend itself to Senators as a worthwhile amendment of the law relating to powers of attorney. It is an important social measure, the purpose of which is to allow persons to put in place arrangements for managing their affairs in the event that they should become mentally disabled.

At present the law, which is almost exclusively of common law origin, enables a person, called the donor, to grant a power of attorney to another person, called the attorney, to act on the donor's behalf. Powers of attorney may be granted for many purposes. Their scope may be limited or unlimited as regards their subject matter or duration. For example, a power may be granted to an attorney to look after the affairs of a person who is temporarily out of the country or to act on behalf of a person in a specific matter, for example, the purchase of a particular property.

However, supervening mental incapacity of the donor automatically revokes the attorney's authority. Thus a power of attorney can lapse at a time when it is most needed. When a person becomes mentally incapable and the question of managing his or her affairs arises, the only option open under the existing law is to have that person made a ward of court. Wardship can be a complex, time consuming and expensive procedure.

It is not surprising then that bodies such as the Alzheimer Society of Ireland [1242] and the Incorporated Law Society have been advocating legislation to facilitate the management of the affairs of people who succumb to mental incapacity. The present Bill does this by providing for a new type of power of attorney, an “enduring power of attorney”, which will take effect should the donor become mentally incapable. The Bill takes into account recommendations contained in a report of the Law Reform Commission on the subject.

Before turning to the actual provisions, I should like to make a few general points. The incidence of Alzheimer's disease — there are believed to be more than 25,000 Irish men and women sufferers — is not confined to the elderly. It is mainly a disease of old age but it can and does strike as early as 50, 40 or even 30 years of age and, of course, there are also other forms of dementia.

Mental incapacity can also result from brain injury at any age, perhaps most commonly from road accidents. The existence of a power of attorney which would not be revoked on the occurrence of mental incapacity would act as a kind of insurance against the effects of accidental injuries of this kind. In fact, in jurisdictions where enduring powers of attorney have been introduced, many young people have executed these enduring powers as a precaution against such an eventuality.

Part II of the Bill deals with enduring powers. What it seeks to achieve is a procedure that will not be over formal but will nevertheless provide adequate safeguards against possible abuse. A primary consideration is that the donor of the enduring power must intend the power to be effective even if he or she should become mentally incapable. The donor must understand, and have the mental capacity to understand, the consequences of creating the power and there must be no question of the power being executed as a result of any undue influence.

The need for safeguards arises from the fact that should the donor become mentally incapacitated, the recipient of the enduring power, the attorney, will [1243] have full authority to manage the donor's affairs subject only to any conditions or restrictions in the enduring power itself or in the Bill. For example, subject to any such conditions or restrictions, the attorney will be able to do whatever the donor might be expected to do to meet the needs of the attorney or those of other persons.

The Bill gives effect to these safeguards in section 5. Section 5 (1) makes it a key characteristic of an enduring power that the instrument creating it must contain a statement that the donor intends the power to be effective notwithstanding any supervening mental incapacity. Other requirements for a valid enduring power will be specified in ministerial regulations. This will give a measure of flexibility, though the matters which may be specified are set out in some detail in the section.

The regulations will provide first that the document creating the power incorporates adequate information about the effect of creating or accepting it. Then there must be a statement in the document by the donor either that the donor has read that information or that it has been read to him or her. It must also include a statement by a solicitor that after interviewing the donor and obtaining any necessary reports, he or she is satisfied both that the donor understood the effect of creating the power and that no undue influence has been used. The possibility is being left open for the Minister to specify not only solicitors but also members of some other class of persons who might perform the same function.

The regulations will also provide for a statement to be made by a doctor that the donor had the mental capacity to understand the effect of creating the power, with the assistance of such explanations as may have been given. The owner of a nursing home or a person concerned with its operation may not act as attorney under an enduring power.

Another requirement, which will be important in this context, is that requiring [1244] the donor to give notice to specified persons of the execution of the enduring power. When a donor becomes mentally incapable, the attorney is required under the Bill to serve notice on certain people, including relatives, that he or she intends to register the enduring power. That may be the first intimation those relatives have received that the power exists. The experience of other jurisdictions is that notification at the point of registration has tended to give rise to suspicion and to prompt what often are unnecessary or unfounded objections to the registration. Under the Bill this difficulty will be minimised because of the advance notice that will be required.

So far I have dealt with the safeguards to be applied when the enduring power is being created. Subsequently, when the donor becomes or is becoming mentally incapable, the attorney must apply to the Registrar of Wards of Court to have the power registered. Before applying, the attorney must notify the persons who were informed of the creation of the power that he or she intends to do so. The notice will tell them of their rights to object to the registration and specify the grounds of objection set out in the Bill. If those persons have died, are mentally incapable or if their whereabouts are unknown, notice must be given to not more than three relatives from groups comprising the donor's spouse, children, parents and siblings, in that order. However, if at least one person in any group would be entitled to get notice, then notice must be given to all the persons in that group. For example, if a donor is married with four children, the spouse and all the children must be notified.

Having regard to the need to serve these notices and to allow time for any objections to be raised and for the registration to take place, the attorney is being authorised, once application has been made to register the power, to act under it to maintain the donor or to prevent loss to the donor's estate. The attorney may also maintain himself or herself or [1245] other persons within the limits set out in section 6(4). Under that provision the attorney may do whatever the donor might be expected to do to meet the attorney's needs or those of other persons. The court is also being empowered by section 8 to intervene, if necessary, at any time before registration has been effected.

Section 10 deals with the procedure for registration. Registration will be automatic unless a valid notice of objection has been received or a person to whom notice must be given has not been notified by the attorney or there is reason to believe that appropriate inquiries might bring to light evidence establishing one or more of the grounds of objection specified in the section — for example, that the donor was not, or was not becoming mentally incapable or that the attorney was unsuitable to be the donor's attorney or that fraud or undue pressure was used to induce the donor to create the power.

Once the enduring power is registered the attorney may proceed to exercise the authority given by it and the donor may no longer validly revoke the power unless the revocation is confirmed by the court. The attorney cannot disclaim the power unless the donor is notified and the court consents.

The scope of the authority given by the enduring power can be a general authority under which the attorney can do anything the donor can do by attorney or it can be limited to a specified part of the donor's property or affairs. In either case it may be subject to conditions or restrictions imposed by the donor.

I already referred to the power which an attorney may exercise — subject to any such conditions or restrictions — to provide for his or her own needs or those of other persons to the extent that the donor might be expected to do. Section 6 (5) goes further and authorises an attorney to make gifts out of the donor's property subject to certain conditions. The first is that specific provision to that effect must be made in the instrument creating the power. The gifts [1246] must be of a seasonal nature or in connection with a birth or marriage or an anniversary and the recipients, who may include the attorney, must be related to or connected with the donor. The gifts may be to a charity to which the donor made or might be expected to make gifts. There is an overriding condition that the value of each gift must not be unreasonable having regard to all, the circumstances and, in particular, the size of the donor's estate. It is also subject to any other conditions or restrictions that the donor may have included in the power.

These are extensive powers and they may be exercised so long as the enduring power is registered. However, provision is made in section 12 for the court to intervene after registration when applied to by the donor, the attorney or, indeed, any interested party. On such an application the court can give directions on a wide range of matters such as the rendering of accounts by the attorney, the attorney's remuneration or expenses and the repayment of excessive remuneration. It may authorise the attorney to act for his or her own benefit or for other persons over and above what is permitted under section 6, but always subject to any conditions or restrictions in the enduring power.

In an appropriate case the court may cancel a registration. It would do so, for example, if it was satisfied that the donor was, and was likely to remain, mentally capable; that the attorney was unsuitable to be the donor's attorney; or that fraud or undue pressure had been used to induce the donor to create the power.

Section 13 provides protection for attorneys where an instrument has been registered although it did not create a valid enduring power. That should not occur very often having regard to the safeguards being provided when these powers are created. There could, however, be technical defects in the execution process, such as the attestation of signatures, which could render an enduring power invalid and which might not have been detected before [1247] registration. If some such defects exist, section 13 provides that transactions between an attorney and a third party will be valid in favour of that person unless the attorney knows of the invalidity of the power. There will be a presumption that a purchaser from the third party will be protected either if the purchase is completed within 12 months of the date of registration or if the third party makes a statutory declaration, before the purchase is completed or within three months afterwards, that he or she had no reason to doubt the attorney's authority. These protections are in line with those available at present in relation to ordinary powers of attorney and which are restated later in section 18.

Section 14 is a technical provision which, along with the Second Schedule, deals with the application of this Part to cases where more than one person is appointed attorney under an enduring power. Attorneys may be appointed to act either jointly or jointly and severally. If they are appointed jointly, one cannot act without the other. If they are appointed jointly and severally, any of them can act.

Part III is concerned with updating the law on powers of attorney generally. The main provisions are those in sections 15 and 16. Section 15 amends the law relating to the execution of a power of attorney in three respects: it enables the power to be signed by another person in the donor's presence and by the donor's direction where the donor is physically incapable of signing — but in that case that person's signature must be witnessed; it requires the power to be signed by the donee; and the power need not be under seal. Section 16, together with the Third Schedule, provides a simple form of general power of attorney which will enable a donee to do anything the donor can lawfully do by attorney. A form to the like effect can also be used but it must be expressed to be made under this legislation. The remaining sections are of a technical character and [1248] they would be best left for consideration on Committee Stage.

As Senators will see, the most important provisions are contained in Part II and relate to enduring powers of attorney. I have no doubt from the reaction to the Bill on publication that this House will be disposed to give a general welcome to its provisions. The Bill is carefully framed to achieve a proper balance between avoiding an unduly complex procedure for the creation of these powers and minimising the risk of possible abuse. I expect that many people will wish to avail of the opportunity presented by the Bill to decide for themselves who should manage their affairs when they are not in a position to do so. I commend the Bill to the House.

Mrs. McGennis: I welcome the Minister to the House and that he is initiating another Bill here. He said he had no doubt from the reaction to the Bill that the House will be disposed to give it a general welcome and I certainly do. My remarks to the Leader of the House which he perceived as criticism were not so. As Fianna Fáil spokesperson on equality and law reform, I like to have a thorough understanding of legislation. My understanding of this Bill is not as thorough as I would wish, although I am familiar with its precept and content. I hope that by Committee Stage I will have spoken with people such as those from the Alzheimer Society of Ireland to ensure their requirements are covered. That is why I directed that question to the Leader. I was surprised he reacted so strongly to it.

This legislation is welcome. As the Minister said, at present powers of attorney are automatically revoked if a donor becomes mentally incapable. Given that the population is ageing, perhaps it was not imperative that the legislation be introduced on the last day of this session, but it is required to address the needs of those who are mentally incapable.

The validity of powers of attorney are frequently questioned. A person cannot arrange in advance to give somebody [1249] the authority to handle his or her affairs when at a later date he or she becomes incapable. As the Minister said, the only mechanism under the law as it stands is that such a person would be made a ward of court. I understand this can be an expensive process.

The Bill gives effect to an enduring power of attorney which gives an authority that continues in force even if the donor becomes mentally incapable. There are a number of safeguards to which the Minister referred. Power of attorney must be arranged in advance but may not be registered until the donor becomes incapable. The attorney must give notice of the registration to the donor and to certain relations or friends who may be specified in the document. A solicitor or doctor may need to state that the donor understood or had the mental capacity to understand the effect of creating the power when it was signed. The safeguards contained in the Bill are welcome.

The Bill appears to contain the necessary safeguards for both the donor and the person receiving the power of attorney. Both carry equal weight of responsibility and the Minister has managed to cover this aspect and provide safeguards. However, on Committee Stage, perhaps the Minister could address one specific area which may not be covered by the Bill. The Bill gives wide-ranging powers and the Minister said he may introduce the extended powers of attorney by regulation. Does this apply to a case where the donor is hospitalised and the type of care with which the donor would be provided during his or her lifetime? The Minister said the attorney has the right to administer the estate and conveyancing is also covered. However, I am not sure whether the Bill covers the type of care that somebody who has become incapable needs.

The restrictions placed by the Minister on the type of functions available to an attorney are welcome. Responsibilities are also placed on an attorney and there is the safeguard that people must [1250] be informed when the document is being registered. The Minister mentioned that in an appropriate case the court may cancel a registration if it is satisfied that the donor was, or was likely to remain, mentally capable or the attorney was unsuitable to be the donor's attorney. Will it be difficult to have a power of attorney reversed or is it a reasonably simple process? When somebody gives power of attorney, there is always a fear that something will go wrong and that they will not be looked after as well as they hoped. However, when somebody selects a person as their attorney, I presume they will choose somebody whom they feel they can trust in the future.

The Minister said the court can refuse to register the power of attorney or can revoke the powers after registration on any of the following grounds: the enduring power was not or is no longer valid; the donor is not becoming mentally incapable; that, having regard to all the circumstances, the attorney is not suitable to be the donor's attorney; or that fraud or undue pressure was used to induce the donor to create the power. These are worthwhile safeguards but will they be easy to implement?

I do not feel I have adequately dealt with Second Stage of this Bill. As the Minister is aware, I am the Fianna Fáil spokesperson on Equality and Law Reform and I usually approach Second Stages of Bills in a much more thorough fashion. I did not expect this Bill to be taken today but I look forward to dealing with it on Committee Stage.

Mr. Neville: I welcome the Minister to the House and congratulate him on his initiative in introducing the Bill. The Minister has initiated other Bills in the House and since it is the end of the session, we should congratulate him for doing so. The House has responded well to the initiation of Bills, which have been improved by suggestions from this side of the House and amendments from the other side. These have improved the quality of legislation processed by the House and the Minister [1251] should be congratulated for accepting them. The Minister for Justice, who is in the news today, is also very open to the views of the House and has accepted amendments which have improved the quality of legislation. Both Ministers are an example to other Ministers by the way in which they approach the work of the Seanad.

This Bill will reduce the trauma for families when a relative of any age becomes mentally incapable. This does not necessarily apply only to an elderly relative because a younger person can have an accident or suffer a stroke and become mentally incapable.

The Bill gives effect to the recommendations of the Law Reform Commission and the Alzheimer Society of Ireland who have done excellent work in this area. The Bill will ensure that the persons granted these new powers of attorney can manage the property and affairs of the persons concerned if and when they become mentally incapable. It is important to provide safeguards in this area since enormous powers are being given to people who in most cases are outside the family.

The Minister has included these safeguards in the Bill in that a solicitor must be satisfied that the person granting the enduring power understands the effects of creating it and that it is not being granted as a result of any undue influence. This is most important. A doctor must be satisfied as to the person's mental capacity when granting the power. The Minister has also ensured that specified persons must be notified by the donor that the power has been granted and he expanded on this aspect during his contribution. The power will not come into effect until it has been registered in the court and there are no valid objections by the persons concerned.

In its report published in 1989, the Law Reform Commission stated that there was a clear case for the review of the law governing powers of attorney generally and for the introduction of legislation governing the creation and [1252] operation of powers of attorney. Powers of attorney are most frequently used when the donor will be absent from Ireland. They are given either for a special purpose, such as the sale of the donor's house, or a general purpose, for example, to manage the donor's property and investments in Ireland while he or she is abroad.

There is no provision in this jurisdiction for enduring powers of attorney. The result is that a person who is concerned that he or she may become incapable of managing his or her affairs is unable to make provision for that possibility. It appears one result of the increase in the life expectancy of the population is an increase in the number of people who will become senile. The Minister referred to figures in that respect during his contribution.

At present, a person who wishes to deal with the possibility of becoming incapable of managing their affairs may only hope that an arrangement will be made in due course to have him or her made a ward of court. This is a very expensive and traumatic process for a family. The power of attorney is a document which one person gives to another to act on his or her behalf concerning financial and property affairs. At present, this is automatically revoked if a donor become mentally incapable and this causes major problems for families. For example, it is often unclear when a donor becomes incapable, particularly in the case of a person's failing powers because of the onset of old age. When does one decide that a person is incapable in the process of them becoming less mentally aware?

At present, there is no means by which a person can privately arrange in advance to give someone the authority to handle his or her affairs when he or she becomes incapable at a later date. As I mentioned earlier, the only mechanism in the law as it stands provides that such a person must become a ward of court. This can cause extreme stress for a family at a very difficult time.

The process of obtaining wardship of court is also expensive and results in the [1253] person's financial affairs being managed by the court or court officials. The Bill before the House changes the present unsatisfactory situation. It gives an enduring power of attorney, which will give an authority which continues in force even if the donor becomes mentally incapable. The representative — legally referred to as the attorney — may, under the Bill, manage the property and affairs of the donor and may specify things on the donor's behalf. He may act on the donor's behalf with the prior authority of the donor.

I welcome the safeguards contained in the Bill to ensure the protection against abuse, which is important. The power of attorney can only be acted upon when the attorney has reason to believe that the donor is or is becoming mentally incapacitated. The attorney must then apply to register the power of attorney in the wards of court office. A strict procedure must be followed to ensure this. The attorney must give notice of the registration of the donor, as outlined by the Minister. The attorney must give notice of the registration to certain relations or friends who may be specified in the document. A solicitor or doctor may have to state that the donor understands or has the mental capacity to understand the effect of creating the power when it is signed.

I welcome a further safeguard in the Bill to protect the donor. Any person served notice of intended registration can object to the registration within five weeks of the notice. If the decision is made to give the power of attorney, the donor or any other interested party may apply to have the power revoked or to ask the court to give directions regarding the duties of attorney, for example, in filing annual accounts in court. The court has the power to refuse to register or to revoke the power on the following grounds: that the power is no longer valid or was not valid at the time of creation; that the donor is not or is not becoming mentally incapable; that the attorney is unsuitable or that fraud or undue pressure was used to induce the donor to create the power.

[1254] I welcome the Bill. It is a technical but important one. For those of us who, like Senator McGennis, are not lawyers, it does take some time to study. I was aware of the introduction of this Bill since the end of last week and I did take some time to look at it. It is difficult to respond spontaneously to such a complex Bill if one is not a lawyer. I commend the Minister for introducing it and look forward to a detailed explanation of the Bill on Committee Stage when we return later in the summer.

Dr. Henry: Like Senator McGennis, I welcome the Bill but I have not had much time to read it, having only received a copy of it yesterday. As Senator Neville says, it is a complex and important Bill and it is difficult for those of us who are not lawyers to go through it. The Law Reform Commission has been looking for a Bill along these lines for about six years, so it is most timely that the Minister has introduced it. The Bill looks good and there are plenty of safeguards in it regarding the donor, the provisions regarding who can be a donee and the general regulations in those areas.

It is important that the donor can revoke the power of attorney because there are cases where a person may be mentally incapacitated for a length of time and then make a miraculous recovery. We have to recognise that, in this country, the vast majority of people who would come under the provisions of this Bill are elderly people. As is pointed out in the Bill, a person has to have the mental capacity to know that he is signing the power of attorney declaration before it is valid. I do not anticipate that this would happen too often with people who had accidents.

It is important that the Minister has included many safeguards regarding who can be the donee. The exclusions he has introduced regarding those employed in nursing homes and so forth are absolutely essential. The provisions should be strengthened even more on the amount of use the donee has of the funds of the person's estate. For [1255] example, it could be written into whatever declaration the donor was making that sums of money for birthdays and so forth could not be more than £100, subject to inflation. The area of gifts and what the donor may use for themselves in the way of funds from the estate should perhaps be specified a bit more. I would like to see that made tighter, because one person's idea of a generous birthday gift is not necessarily the same as another person's. I would like to see some figures inserted there and also, if necessary, provisions for inflation.

There is one area the Bill has not addressed, the area of advance directives and what are commonly known as “living wills”. The Bill does not rule out giving the attorney power to implement advance directives by a patient but, if it is not intended, it would be wiser to insert a clause saying whether or not this is allowed. This has been one of the areas where power of attorney has been of importance in the United States where, in 50 of the 52 states, it is now possible to make legal advance directives. In this country, that could end up being just as important, because we now have a smaller average family size and there is much emigration. There is internal migration within America and a large number of older people end up in the sun states without the benefit, in times of severe illness, of a close relative being at hand to say what they do or do not think the person would like.

These directives are not that difficult to draft. I have one here from the state of Texas, which starts off much the same as a declaration giving power of attorney:

I,..., being of sound mind, wilfully and voluntarily make known my desire that my life shall not be artificially prolonged under the circumstances set forth in this directive.

The directive is a short statement, but the thought of the prolonging of their life in circumstances which they might not want can be as difficult a problem for the elderly as can what happens to [1256] their property. I recommend to the Minister to read a book called Life's Dominion by Ronald Dworkin, which goes into the pros and cons of giving people the right to have an advance directive in great detail. The Department should consider this issue, because it is a serious issue for elderly people who may feel that they do not want resuscitation, which may only prolong their lives for about a month, in situations that they feel would be miserable for them.

I would like to see this issue addressed in this Bill. We do not have to constantly introduce complex legislation for such areas. Only this morning, I picked up four copies of a bulletin of medical ethics, all trying to deal with this issue in Europe. Why is Ireland's voice not as good as any other country's in discussing this issue? This idea is not associated in any way with euthanasia. It is allowing those, who will almost always be elderly people, to say what amount of resuscitation they want in certain circumstances. Some people will say that they want resuscitation to the last moment, whereas there are others who will say the opposite. If it is not intended that this Bill deal with that situation it should be clearly stated that this is so. It dovetails to deal with the property and affairs of whoever is involved and one's medical affairs may be far more important to a person than what will happen to one's inheritance. I would prefer to address this now and consider including it in the Bill rather than have another complex conversation in a few years time. Plenty of other jurisdictions have introduced such legislation and we are not less competent philosophically, mentally, emotionally or intellectually to deal with this problem.

I hope the Minister and his advisers take what I have said into consideration and that we can discuss it further. Perhaps I could introduce an amendment if the Minister does not find time to do so before the autumn. This matter could be addressed here and that would be useful to the medical and nursing professions. [1257] These are people who have been mentally incapacitated and this is what thev want at the end of their lives. I hope the Minister will address that in the Bill.

Ms Gallagher: Like previous speakers I was taken by surprise when I found this legislation on today's Order of Business. I did not get much time to consider it but at least it is an area with which I am familiar. This quiet little Bill, slipped in on our last day before the recess, has the potential to affect every one of us. From now on we will all be capable of making an enduring power of attorney and it should be considered by everybody. This will become law during the next session and I hope there will be an information campaign to make people aware of this useful new development.

This initiative was recommended by the Law Reform Commission and was also sought by the Alzheimer Society and the Incorporated Law Society of Ireland. The existing ordinary power of attorney under common law allows people with full mental capacity to make provision for matters which may arise when they are unable to attend to them. For example, I have drawn up powers of attorney for soldiers going abroad to the Lebanon who wanted their affairs dealt with in their absence. However, the powers immediately cease if the person becomes mentally incapacitated. The family of the person who is unfortunate enough to suffer a lapse of mental capacity is then forced to employ solicitors and barristers and attend to the complex procedure of a ward of court application. This takes a long time and costs a great deal of money. It is not within everybody's range and it is not cost effective for people with a small sum of money to make a ward of court application because all the money would be spent on the application.

This is sound legislation. As usual the Minister has ensured a comprehensive procedure framed in simple terms. We will not be put through hoops in order to grant a power of attorney. At the [1258] same time adequate and necessary safeguards are provided in the Bill. Everyone approaching old age fears losing his senses and ending up like so many others sitting in the corners of old folk's homes or hospitals, totally incapacitated and unaware of what is happening. It must be frightening for people who gradually become incapacitated. Each one of us could be affected. It is reassuring to know one has the power to take matters into one's own hands and if something unfortunate happens, one has already provided for one's most important wishes and requirements. It is a marvellous safeguard. Just as one should make a will, one should make an enduring power of attorney.

The Bill is well drafted. The safeguards are essential because we must ensure that people granting such a power are not doing so under undue influence. It is crucial that those powers are incorporated to ensure the independence of the person involved and the expression of his true intentions. It is important that the Bill clarifies when the power will come into effect and when a person can be deemed mentally incapacitated or mentally incapable. This problem arises on a daily basis.

I am often called to the local old folk's home to make a will only to find, having talked with the person, they cannot remember what I asked them five minutes previously. Yet, a relation has said this person wants to make a will. One must be concerned that there is not some undue influence involved. It is important to have a safeguard to determine when somebody is mentally incapable of looking after his own affairs. The legislation proposed by the Minister is very sensible in that area.

The legislation affects everybody but when one looks at the number of people suffering from senility, it is obviously serious legislation in terms of its potential impact. We often underestimate how people wish to provide for their own affairs under varying circumstances. This Bill allows them to do so with adequate safeguards. Somebody mentioned that there should be restrictions [1259] on the allocation of the person's income and this is important. It is crucial to provide accounts. The person receiving the power of attorney should be obliged to submit accounts, either to the wards of court office or elsewhere on an annual basis to ensure supervision of how the power of attorney is being administered.

The Minister should examine this area because safeguards are important. Money tends to corrupt even in the hands of well-intentioned people. It is often difficult to determine what the donor intended because the power of attorney may not be specifically clear on matters as they arise. It is important to ensure some control on how the person receiving the power of attorney administers it.

The Bill takes a sensible approach and provides something that was badly needed. We may not have heard it being shouted from the rooftops every day of the week but if affects everybody. The safeguards are adequate but I would prefer to see a provision requiring annual accounts. It is a sensible Bill and I look forward to discussing it in the next session.

Mr. Lanigan: Like other speakers I would have preferred advance notice of the Bill. I give it a certain welcome but I am not sure how relevant it is. In the last few years it has been virtually impossible to persuade people to make a will but we are now introducing legislation to improve powers of attorney, which may be granted for many purposes.

The reasons for taking out power of attorney include the purchase of property or being out of the country for a period. It is suggested that soldiers going to the Lebanon would take out power of attorney but I imagine less than 0.01 per cent of them do so. That is an example of when one might use this power but it does not often happen. A person takes out power of attorney under companies legislation because he cannot deal with his affairs. He gives [1260] power of attorney to another person until such time as he puts his affairs in order. What is the position in this regard?

Under this legislation the attorney gives notice of the registration to the donor. If that notice is given, the donor must be deemed to have been incapacitated at that time. What is the point of giving notice to the donor of the registration? If the person is not incapacitated mentally, why give notice? The Bill provides that the registration will occur only after the attorney has given notice of the registration, which suggests the donor is incapacitated. Naturally, the Law Society welcomes this legislation because its members will get more business.

Problems occur when people get Alzheimer's disease but the number who will benefit from this Bill will be minimal, because people do not expect to get the disease. Should we recommend that everyone takes out powers of attorney in case he suffers from Alzheimer's in the future? Are we suggesting that if a person gets Alzheimer's his relatives will be in trouble, because they would have been better off to take out power of attorney?

The Bill needs more consideration than we are giving it today and I am glad we will have time during the summer to think about it. The most important effects this Bill might have are first, to persuade people to make a will and second, if a person was out of the country or had problems, to persuade him to take out power of attorney or give such power to another person. Normally one gives power of attorney to a solicitor or someone else with knowledge of the law, because there is little point giving it to someone without such a background.

There are many forms of mental incapacity. At present we hear most about Alzheimer's disease but people can become mentally incapacitated at any time of life. If the Bill suggests people should make a will and at the same time take out power of attorney it is worthy legislation, because it would make [1261] people conscious that they may become incapacitated.

The Bill provides that the donor must understand and have the mental capacity to understand the consequences of creating the power. This will not help 90 per cent of the carers of people with Alzheimer's, because they would not have taken out power of attorney before contracting the disease. People must be made aware that they could become mentally incapacitated and may need someone to look after their affairs. If that is the reason for the Bill, that is its strength but people must be persuaded to take out power of attorney. However, if one makes a will it need not cost anything but to take out power of attorney one has to go to a solicitor and use the legal system, which costs money. I say that although members of my family are in the legal profession; I do not know how they would respond to that statement.

The need for safeguards arises because one member of the family may see another becoming incapacitated and put pressure on the first person to take out power of attorney. This is where problems arise. It is difficult to decide at what stage in a person's incapacity pressure may be applied. No psychiatrist will decide a person was sane and capable of making a decision on a particular day and was neither sane nor capable the following day. There are grave medical difficulties in deciding when a person is and is not capable of giving power of attorney.

I have difficulties with this legislation. The court can refuse to register the power of attorney or revoke it if the enduring power is no longer valid or if the donor is not, or is not becoming, mentally incapable. How will a judge decide whether someone is capable? If he needs help from a group of psychiatrists, there will be an increase in legal costs for a person when a court must decide whether he is incapable. There will be a bonanza for someone and that might occur when it is not necessary to adjudicate whether someone is capable of dealing with his affairs [1262] or whether the power of attorney should be continued.

The court can decide, having regard to all the circumstances, that the attorney is unsuitable. A person may choose to give his solicitor power of attorney but if a decision has to be made to continue that power, a court will decide whether the person should have chosen that solicitor. That is crazy, if I am interpreting it correctly.

Senator Henry signalled the real significance of the Bill when speaking about euthanasia and advance directives. She said if a person decides in certain circumstances to end his life and gives another person power of attorney to carry that out——

Dr. Henry: On a point of information, I did not say that. I said “not to be resuscitated” and I said that this had nothing to do with euthanasia. They are two totally different things and it is very important to separate them.

Mr. Lanigan: We should not get into the nuances of language as to whether euthanasia amounts to life being terminated or not. What is being suggested is that if I give power of attorney to somebody to make certain that the doctor does not resuscitate me if I have some sort of problem, the attorney has to carry out my directives in that regard. That person has to decide whether I am to die or not. The power of attorney is absolute in that sense. It means that the poor person to whom I am giving power of attorney has to follow through on my wishes even though those wishes might be against the tenets of medicine. That element is being brought in. We are saying that if I give power of attorney to somebody they have to carry out my wishes irrespective of the laws of the land and irrespective of the medical profession.

Dr. Henry: That is right.

Mr. Lanigan: What the Senator has said is one of the most thought provoking comments on the Bill. I welcome [1263] that because it might bring home to people the absolute powers of attorney being created in this Bill. Senator Henry has introduced an aspect which the Minister has not thought of addressing in the Bill, and it will have to be addressed before we come back in October.

Mr. Manning: On foot of the agreement made with the Opposition last week and in line with today's Order of Business, it is not proposed to complete the Second Stage of this Bill today.

Debate adjourned.