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Elder Law Review Vol 4
Empowerment and Protection in the 21st Century
Peter Whitehead
To achieve the balance between empowerment and protection requires good legislation, sound and trustworthy trustees, attorneys and guardians and accessible options for advice and review. This was the key outcome for delegates at the 5th International Conference of Public Trustees and Public Guardians in London, June 2006.
However ... notwithstanding the globalisation of knowledge sharing via email and internet, it is clear that the many jurisdictions represented at the conference have different approaches to the balance between protection and empowerment for vulnerable persons. While the approaches had the common theme of "the persons best interests" the conference provided a catalyst to future recommendations for reform in NSW and perhaps further uniform procedures across Australia.
Discussions of the Mental Capacity Act 2005 (England and Wales) provided food for thought. While enshrining a presumption of capacity, the legislation focuses on decision specific capacity and encourages participation in decisions even when people lack capacity. Unwise decision-making will not necessarily be evidence of loss of capacity under the new law. Clearly practical dilemmas will arise in how to ensure that some level of protection is provided ... and "best interests" are protected. The Act however comes with a Code of Practice to provide guidance and describing responsibilities when acting or making decisions. As well their Public Guardian will supervise decision makers in both financial and personal decision-making.
A strong Japanese delegation provided details of new developments of both voluntary guardianship and a supervision and advisership system as ways of both assisting appropriate decision making and preventing financial or other abuse. Currently in NSW the Supreme Court and Guardianship Tribunal have powers of review and clearly the Guardianship Tribunal, as it exercises these powers more frequently, will "remove" attorneys or guardians who are not properly meeting their obligations. My main concern is that abuse may go undetected and we need to consider possible solutions. Quebec, Canada also allows a donor to require their attorney to deliver an account of their management to a nominated person as a control.
It would appear worthwhile that donors of powers be able to elect to enter into either/or both supervision or advisership for their nominated attorney and select an appropriate review period. This would allow donors who are hesitant about their choice of attorney, or those who are selecting only one of their children, to have someone appointed who can either review or supervise. The supervisor could be either someone like the Public Trustee or Trustee Companies, or professionals such as accountants. This supervision would be analogous to private financial manager supervision by the Office of the Protective Commissioner, but voluntary ... people choosing independent review procedures to safeguard their long term financial management. While the Guardianship Tribunal has specific powers to give advice to attorneys the concept of advisership takes this further, could be decision specific and not require the formality of a hearing.
The review of the NSW Power of Attorney Act is due to occur in 2008. The exposure to different ideas from international jurisdictions is always important to make sure that we adopt best practice in managing the balance between protection and empowerment ... letting our seniors have flexible but reliable options for financial and
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