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Clause 4 of the Bill provides that a power of attorney which is executed in accordance with the formalities I have just described will not be revoked if the donor subsequently becomes mentally incapable. But before the attorney becomes competent to act under the power conferred on him or her, the document must be registered at the Supreme Court. This must be done as soon as the attorney has reason to believe that the donor is or is becoming mentally incapable.
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The mechanics of registration are provided for in clause 9. Registration is not a guarantee of the validity of the document it will not validate a document which is otherwise invalid. The purpose of registration is that it will enable third parties to inspect the powers of attorney on the register, on payment of a fee. In this way, enduring powers of attorney will be made a matter of public record. A further measure of publicity for the protection of the donor's interests is provided by clauses 18 and 19, which allow the donor to nominate persons who must be notified before the attorney applies for registration. In any legal proceedings relating to an enduring power, the court may draw an adverse inference from a failure to notify such persons.
A person who has created an enduring power of attorney and who subsequently becomes mentally incapacitated will be in a position of considerable vulnerability. The Bill therefore contains provisions which are designed to protect the donor from both malpractice and lesser shortcomings on the part of the attorney. Clause 12 places an attorney under a legal duty of utmost good faith towards the donor, and requires the attorney to exercise his or her powers honestly and diligently, to keep proper accounts and records, to avoid conflicts of interest and to keep the donor's property separate from any other property. Provision is made in clause 11 for any interested party to apply to the court for a variety of remedial orders. The court will have power to require an attorney to produce records and accounts, to revoke an enduring power and to remove the attorney. The circumstances in which an enduring power is revoked are set out in clause 13. Clause 16 invalidates any attempt to dispense with the requirements of the Bill, while clause 17 ensures that an attorney cannot disclaim his or her responsibility at any time when the donor is mentally incapable or after the enduring powers has been registered, except with the consent of the court.
Mr President, this Bill offers a useful and needed reform. The recognition of enduring powers of attorney has the support of those who were consulted on this issue and I believe that these instruments will be generally welcomed by the community. I commend the Bill to the Council.
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