characteristics of the specific type of enduring power. Increased possibilities for abuse in the case of powers enabling an agent to act in respect of financial as well a personal welfare matters, and in the case of conditional powers have lead legislators frequently to provide for additional safeguards. The law reform bodies of New Zealand and Alberta (Canada) both recently investigated misuse of enduring powers after the concept was introduced in both jurisdictions more than a decade ago. Both bodies indicated that misuse of enduring powers is most commonly financially related and is likely to involve the misappropriation or misapplication of money or property of the principal by the agent.671 In both jurisdictions the advantages of the enduring power were realised in the majority of cases. Research however showed that agents do in fact abuse their powers in some instances. This, and the fact that under the existing systems in these jurisdictions abuse was possible, lead both bodies to recommend the introduction of additional safeguards.672
7.51 As a general approach the extent of the safeguards needed is weighed against the possible influence such safeguards could have on the efficiency of the enduring power.673 As indicated previously, the major factor motivating the introduction of the concept is the need for a simple and cost-effective device enabling principals to have their affairs managed by a person of their choice without professional or institutional interference. Safeguards against abuse should thus be provided but should not be so onerous that they will unduly inhibit the use of enduring powers. In Alberta (Canada), where a system of enduring powers of attorney (dealing property matters) has been in practice since 1991, the Law Reform Institute in its recent investigation on the need for additional safeguards remarked as follows:
“It is necessary to recognize that, short of a comprehensive and completely state-guaranteed system of administration of the property of incapacitated persons, there is no way to give a 100% guarantee that no
671 Alberta Law Reform Institute Final Report No 88 2003 6; New Zealand Law Commission Preliminary Paper 40 2000 5.
672 Alberta Law Reform Institute Issues Paper No 5 2002 3-4 and Final Report No 88 2003 x-xi;
New Zealand Law Commission Preliminary Paper 40 2000 4-8.
673 Alberta Law Reform Institute Final Report No 88 2003 6.
person who administers the affairs of an incapacitated person, including an attorney [i e agent] appointed by an EPA [enduring power of attorney], will abuse the powers given to that person. Reasonable safeguards against abuse should be provided, but piling safeguard upon safeguard in the hope of marginally reducing the number of cases of abuse will reduce or destroy the utility of a useful device that is highly beneficial in the great majority of cases in which it is utilized.”674
In concert with this view it seems that, broadly speaking, legislation dealing with enduring powers in other jurisdictions tend to favour simplicity over formality.675
7.52 Protection of the principal is usually obtained through introducing safeguards with regard to execution of the power; the event triggering onset of the power (in particular in the case of conditional powers); and supervision of the agent (usually by the Court or a relevant official body). In other jurisdictions the following legislative measures have been regarded as minimum standards in this regard:676
♦ Express prescription in legislation of the capacity required of the principal to execute an enduring power.
♦ Requiring attestation of the power by two witnesses not related to either the principal or agent.
♦ Requiring a statement of intention by the principal that the enduring power is to survive the principal’s incapacity.
♦ Provision for the possibility to terminate the enduring power or to have it supervised by a Court or some other official body.
♦ Renunciation of authority by the agent to be impossible without notification of an official body or a Court.
♦ Broad standing provisions for objections to an enduring power; and
♦ Requiring that agents keep records which they may be called upon at any time to produce to a Court or official body - a requirement which is often
674 Ibid 6-7.
675 Cf Alberta Law Reform Institute Report for Discussion No 7 1990 35.
676 Creyke 1991 Western Australian Law Review 146; Atken 1988 New Zealand Law Journal 368;
Schlesinger and Scheiner 1992 Trusts and Estates 38.
spelt out in detail in informational notes accompanying the enduring power or the relevant legislation.
7.53 Typical safeguards, their advantages and disadvantages or standard motivation for introducing them are discussed below with reference to the development of the enduring power in other jurisdictions,677 the Commission’s 1988 proposals, and the comments received on Issue Paper 18. Note however that the question of safeguards was broadly and generally discussed in Issue Paper 18 - more with regard to its need and general form as with regard to preference for specific safeguards. As indicated above, respondents in general strongly emphasised the importance of building safeguards into any process introducing the concept of the enduring power in our law. Many indicated that a variety of different control measures (such as, for instance, some execution formalities; registration of the power; requiring a certain standard of behaviour from the agent; provision for termination of the power; and provision for control of the agent) would be necessary. There were however also relative consensus that control procedures should be kept as simple as possible and that the aim should be to obtain a balance between the need for protection and providing for a simple and accessible procedure. Comments by representatives of the Office of the Master of the High Court in general reflected support for the Commission’s recommendations for execution safeguards in its 1988 Report. These recommendations (in particular those with regard to signing and witnessing of an enduring power) relied heavily on the formalities required in the execution of a will in terms of the Wills Act, 1953.
677 See eg the work done in this regard in Scotland, England, Australia, Canada and New Zealand (Scottish Law Commission Discussion Paper 94 1991 247 et seq; Scottish Law Commission Report No 151 1995 28 et seq; English Law Commission Consultation Paper 128 83 et seq; New Zealand Law Commission Preliminary Paper 40 2000 3 et seq; Alberta Law Reform Institute Final Report No 88 2003 4 et seq. The information below is recorded mainly with reference to a summary of the in principle position in Canada, Australia, the United Kingdom and New Zealand supplied in a recent Final Report on Safeguards Against Abuse by the Alberta Law Reform Institute dated February 2003 (Alberta Law Reform Institute Final Report No 88 2003 Appendix C).