Enduring Powers of Attorney
There are few Bills which come before the House which reflect our desire to live according to kaupapa handed down by our ancestors as perfectly as this, the Protection of Personal and Property Rights Amendment Bill.
This Bill is ultimately about enhancing the protection and promotion of the personal and property rights of people who find themselves in a vulnerable position.
In its provisions to strengthen the legislation, we see this as an awesome opportunity to apply kaupapa tuku iho; that is, those values which provide for the wellbeing of all.
Uppermost in its intentions, is the capacity for manaakitanga – the opportunity to create an environment where the personal care and welfare of others is important.
By way of explanation, manaakitanga is behaviour that acknowledges the mana of others as having equal or greater importance than one’s own. What we know is that an enduring power of attorney must be established before it is required, before a person becomes incapacitated.
We would expect from this requirement, that the person is able to choose someone that they can implicitly trust to act in their interests. The Bill makes explicit the obligation of the attorney to act in the donor’s best interests.
The opportunity to appoint someone with an enduring power of attorney to make decisions on your behalf, is an expression of rangatiratanga.
The concept of rangatiratanga equates to oversight, responsibility, authority, control, sovereignty. The onus, therefore, in ensuring this legislation has validity, is to ensure that regardless of any provision to create an enduring power of attorney, the attorney has an obligation to encourage the donor to exercise their own competence. This Bill establishes this as a requirement.
In the most basic of terms, the idea of getting someone to sign cheques on your behalf, to deal with all the accounts, policies and possessions that have meaning in your life, is a pretty scary prospect.
The responsibility of signing over one’s enduring powers of attorney is therefore a massive milestone in one’s life, and in the Maori Party we understand this best, through making that ultimate connection to rangatiratanga.
In other words, to respect the capacity for self-determination by Mäori, as inkeeping with the rights defined by Mana Atua, Mana Tupuna and Mana Whenua.
Within Maori world views, we believe the concepts of cultural resilience, of spiritual and ancestral dimensions, and of genealogical importance – such as these – are best addressed by whanau.
This issue, Mr Speaker, is of very personal relevance to our whanau, having recently lost my elder sister, Hine, in fact just two weeks ago.
Towards the end of her life, my sister’s health was compromised, as she battled with the effects of a stroke. Over these last few years, we cared for Hine in our home; my wife placed with the responsibility of her day to day care and support.
Although Hine never got to the point of signing over powers of attorney, my wife did have financial authority for being able to act on her behalf, as the situation required.
It was a responsibility that my wife took extremely seriously, also conscious of the privileged position Hine had placed her under.
It was also a responsibility that as a whanau we knew had to be protected and respected in order to protect and respect my sister.
It was through that experience that we truly came to know how the exercise of authority on behalf of another, must be safeguarded at all times; making sure to never lose sight of the person who has entrusted their confidence in you.
It is absolutely about the essence of being whanau; and of honouring whanaungatanga as the fundamental organisation of our community.
By this we mean, that the rights and reciprocal obligations consistent with being part of a whanau collective are paramount in determining and caring for the personal welfare and rights of its members.
As such, there are two particular concerns that the legislation has raised.
The first significant change is the need to go to a lawyer, or a trustee incorporation before an enduring power of attorney is granted and the need in a number of situations to go to a doctor before being able to use those powers.
Both of these changes, we have considered, reduce the accessibility and versatility of the enduring power of attorney.
And this, Mr Speaker, is where we face the greatest conflict.
For although we support the need for strengthening accountability through the new witnessing requirements, we hope that the procedures are, as the Law Commission put it, “as swift, inexpensive, informal and lawyer free as possible”.
We endorse the comments made by the National Council of women, who warned that the legislation mustn’t make the process so cumbersome that family members avoid it and the benefits it provides.
And we agree with them, that a review of the provisions should take place in five years, to really test its effectiveness.
But in the trade-off between reducing bureaucracy and unnecessary paperwork, we would be reluctant to act in any way to open up situations of misuse of enduring powers of attorney.
Again the Law Commission described such misuse, including:
Outright embezzlement – rationalised by the attorney as ‘borrowing’; (I’m sure if Mum understood she wouldn’t mind)
The attorney helping themselves to the donor’s belongings;
Failure to support the donor into an appropriate residence, when it may be clearly necessary;
Or conversely, prematurely institutionalising the donor to suit the attorney’s lifestyle;
And worst case scenarios – selling the donor’s home without their knowledge or consent.
Such actions are an outright breach of the spiritual and cultural guardianship derived from whakapapa. Kaitiakitanga demands that attorneys would take on an active exercise of responsibility in a manner beneficial to the welfare of their whanau.
And yet, tragically, all the evidence is telling us that men and women of all age groups, of all ethnicities are experiencing elder abuse and neglect, although it appears to be most common amongst those in their 70s and early 80s.
And so, we, reluctantly it must be said, accept that the legal professionals and authorized officers, engaged independently of the attorney, are a vital means of acting as an extra safeguard against undue influence.
I want, too, to refer to the principle of kotahitanga as the expression of unity of purpose and direction.
In the interests of kotahitanga I believe it is incumbent upon the Government and the Minister to ensure that full and informed dialogue and information sharing takes place amongst our communities about the procedures for creating enduring powers of attorney.
The House would be shocked by a New Zealand Medical Journal, entitled ‘Doctors, elder abuse and enduring powers of attorney’, which describes widespread ignorance amongst doctors and other professionals dealing with incapacitated patients, and about the scope and nature of powers granted when an enduring power of attorney is donated.
And I want to share with the House, one of the warnings in this article, and I quote:
“The Enduring Powers of Attorney, properly used, should act as a shelter for the elderly from the vicissitudes of life, not as a weapon in the hands of the unscrupulous attorney”.
There is a strong message here - that those who are not fully able to manage their own affairs must be protected and respected – and this Bill is a key way of doing it.
Finally, Mr Speaker, I am aware of the report from Age Concern New Zealand in April 2004, which reported that NO Maori clients were recorded as having an enduring powers of attorney for property; and that in general, Maori have been less likely to appoint someone to hold this role.
And so the residing questions for us, the Maori Party, is given that the provision of enduring powers of attorney can, if used responsibly, be such a powerful means of supporting our whanau, we would hope that every effort is put into ensuring the policy is promoted throughout Maori communities.
We are happy to support this second reading of the Protection of Personal and Property Rights Amendment Bill.