Draft Powers of Attorney Bill 2016

COTA SA has been asked to provide comments on the draft Powers of Attorney Bill 2016 which will reform the law regarding financial powers of attorney.

The aim of the reforms is to clarify and improve the laws governing how people appoint others to manage their financial affairs when they lose the capacity to do so themselves, with a focus on:

• ensuring that they make these arrangments of their own free will;
• preventing these arrangements being used to exploit or abuse people whose decision making capacity has become impaired;
• punishing those who abuse a position of trust to coerce a vulnerable person to appont them as a financial representative or who use their appointment for their own benefit rather than for the benefit of the vulnerable person; and
• improving and simplifying the procedures for resoilving disputes about such arrangements.

Download a copy of the draft bill

Comments should be sent to Nicola Thurston at nthurston@cotasa.org.au by 15th April 2016.

Summary of changes

11-Appointment of manager to oversee power of attorney

(1) A donor under an enduring power of attorney may appoint a person (including the Public Advocate) as manager with the function of overseeing the exercise of powers by the donee-
(a) during a period of mental incapacity of the donor; or
(b) if illness, frailty or other physical incapacity suffered by the donor prevents the donor from attending to the matters in respect of which the power of attorney may be exercised.

(2) The donor must provide the manager with a copy of the power of attorney specifying the appointment, but a failure to do so will not invalidate the appointment.

(3) The power of attorney may require the donee to notify the manager of the donee's intention to take the following action (which notification must occur no later than the prescribed number of days before taking such action):
(a) the exercise, for the first time, of the power of attorney (other than the carrying out of a transaction referred to in paragraph (b));
(b) the carrying out of any 1 or more of the following transactions:
(i) the sale of the donor's home;
(ii) the purchase on behalf of the donor of real estate or any other major asset;
(iii) the registration of an instrument with the Lands Titles Office;
(iv) financial arrangements for a major change to the donor's lifestyle, for example, to move the donor into residential care;
(v) a gift or transaction on behalf of the donor that benefits the donee or a relative, associate or close friend of the donee;
(vi) a transaction of a kind specified in the power of attorney as a notifiable transaction.

(4) A failure by a donee to notify a manager as required under subsection (3) does not invalidate the exercise of the power or the transaction.

(5) A manager appointed under this section may request information from the donee about the following matters:
(a) details (including records and accounts) of any transactions carried out by the donee in the exercise or purported exercise of the power of attorney;
(b) the currency of the power of attorney;
(c) the mental capacity of the donor;
(d) the wishes or preferences of the donor during a period of mental incapacity of the donor.