The Victorian Parliament Law Reform Committee has just completed its inquiry into powers of attorney.
Its report has been a long awaited document by lawyers, law makers and the public. It is a very large document – 321 pages – and makes no less than 90 recommendations. This points to the complexity of the issues involved in regulating “substitute decision making”.
The current state of the law on powers of attorney is a mess. There are four types of powers – the General Power of Attorney, the Enduring Power of Attorney (Financial), the Enduring Power of Attorney (Guardianship) and the Enduring Power of Attorney (Medical Treatment). They are presently governed by three different acts of parliament, and each has a different method of execution. There is some overlap in the powers given by the various Acts. (Medical powers of attorney were not within the Committee’s terms of reference.)
The governing legislation is State based, so there is also confusion about the validity of powers drawn in different States.
Moreover, there is no system of registration; this can lead to confusion and the drawing of duplicate powers to multiple attorneys.
Perhaps most significant of all, there is confusion in those given power of attorney about what their role is, and the limits and extent of the powers granted.
The Committee addressed all of these issues, and more.
Amongst its recommendations were that a single Act (the proposed Powers of Attorney Act) govern the creation of powers, that all be executed in a consistent way, that they all have a consistent look and format, and that a system of registration be created.
The fundamental basis of the reforms is to provide for a simpler and easier to understand framework, to minimise abuse, and to promote the use of powers so that the best interests of the person giving the power are maintained.
It is hoped that the Victorian government will adopt the recommendations to the fullest extent possible as these reforms are long overdue in a society with an increasingly ageing population vulnerable to financial abuse.