Commissioner Geof Shirtcliffe said the law was relevant to thousands of people across the country. Photo: 123rf
The law overseeing the rights of adults with affected decision-making capacity requires such significant reform it should be repealed and replaced with a new Act, the Law Commission says.
Some of the sweeping changes being considered include how to better prevent misuse of enduring powers of attorney (EPOA), whether a single agency should be set up to investigate complaints, and whether a nationally accessible register of EPOAs should be established.
Commissioner Geof Shirtcliffe said the law was relevant to thousands of people across the country and a new act was as much about reform as it was about changing attitudes.
The Protection of Personal and Property Rights (PPPR) Act 1988 provides for arrangements when a person's decision-making is affected, usually through another person appointed to make decisions for them.
Those affected may have a traumatic brain injury, dementia or cognitive decline, learning and intellectual disabilities, or mental distress, and decision-making arrangements include personal orders, welfare guardians, property managers and enduring powers of attorney.
The Law Commission on Friday released the second paper in its review of the act in which it said the law required significant reform.
"We think that the extent of the required reforms means that it would be preferable for the PPPR Act to be repealed and replaced with a new act."
The 376-page report said the current law was passed before the United Nations formally recognised the rights of the disabled to equal legal capacity.
It also did not properly take into account the Treaty of Waitangi and tikanga despite Māori experiencing dementia, mental health, ill health and disability at higher rates than non-Māori.
The report said a new act needed to provide a clear legislative purpose closely informed by human rights, a person's will and preferences, and their dignity.
The paper, now out for public submission, dedicated several chapters to safeguarding against abuse by enduring powers of attorney without making one too expensive and complex to set up.
An EPOA can be set up by a person, called a donor, in advance of old age or for other reasons and comes into effect when they no longer have decision-making capacity.
It typically covers property, including finances, as well as health and welfare.
Submitters to the Law Commission's first review paper in 2022 described instances of attorneys isolating donors and stealing from them.
"Many submitters told us about difficulties challenging actions under an EPOA due to the complexity and cost of court proceedings.
"These barriers can be exacerbated if the donor is isolated, frightened of the attorney or dependent on the attorney for care and support."
The issue was such a serious one it had been reviewed twice before in 2001 by the Law Commission and in 2014 by the Minister for Senior Citizens.
After the first review extra safeguards were put in place but their effectiveness was called into question in 2014 because too many people were avoiding making EPOAs due to the extra cost and complexity.
Suggestions gleaned from other countries' approach
The Law Commission's latest paper looked at what other countries do and came up with a range of suggestions that it now wants feedback on.
These included whether to establish a single agency to investigate complaints, oversee a register of EPOAs, and handle monitoring and education.
Currently, only the Family Court could invalidate or revoke an EPOA but there were fewer than 30 such applications each year indicating its inaccessibility.
"What we hear from a lot of people, that at the moment the system is deficient, that too many people are getting away with abuse because it goes under the radar or it's too expensive to do something about it or if you do do something about it, that it's hugely disruptive to family relationships," Shirtcliffe said.
Other changes being considered included whether there should be a person nominated to monitor an attorney, whether the attorney should be required to file detailed financial records, whether they should face liability for not satisfying their duties, and whether there should be a register of EPOAs and who could access that.
Registers had been set up overseas to enable supervision, assist professionals when it wasn't clear whether a person had an EPOA or who the attorney was - particularly when urgent decisions were required - and to try to prevent people using forged or revoked EPOAs.
Submissions are open until 21 June and can be made via the Law Commission website.
The Law Commission will present final recommendations to the minister next year.
