This article was produced by the Commission and appeared in the April 2011 issue of the Law Institute Journal.
Online registration of things like enduring power of attorney are among the proposed changes to the Guardianship and Administration Act.
The VLRC’s consultation paper on the review of the Guardianship and Administration Act 1986 (Vic) has included an online registration scheme among its reform options.
The paper was released in March and examines how the Act interacts with other laws that deal with substituted decision-making arrangements.
The reforms proposed in the consultation paper outline how the laws can be clarified, improved and redesigned to promote the interests of people with impaired decision-making capacity. Some of the VLRC’s proposals were previously outlined in the March LIJ.
The VLRC suggests that there be an online register for enduring powers of attorney (financial), enduring guardians and advance directives. The online register could:
- alert relevant third parties, such as financial institutions and health professionals, to the fact that an appointment has been made or a directive given;
- provide a number of safeguards in ensuring that only valid and current powers of attorney are recognised by third parties;
- reduce the potential for abuse of vulnerable people;
- give the donor of a power, the appointee and third parties increased security; and
- encourage the use of personal appointments.
The VLRC considers that an online register would be more effective than a paper-based register. It is more readily searchable, because it does not require the person conducting the search to be in the same physical location as the register, provides 24-hour access—which would assist hospitals—and is readily updateable.
Any registration system, but especially an online system, would need safeguards to protect individuals’ privacy while allowing appropriate people to access it.
Access to some information on the register could be provided to appropriate third parties, such as hospitals and banks, through a subscription system.
The VLRC considers that compulsory registration would provide more effective safeguards than voluntary registration. Voluntary registration does not allow third parties to conclusively determine if the appointment or advance directive is valid and current.
However, a key difficulty with compulsory registration is if failure to register invalidates the appointment. This would frustrate the intentions of a person who has taken some steps to provide for circumstances when they are unable to make their own decisions.
One possible solution is to make registration compulsory but to allow VCAT to determine if an appointment that has not been registered should be confirmed.
The VLRC is also seeking feedback on whether VCAT orders appointing guardians and administrators should be included on a register.
This would make all appointments accessible at one place. It would provide a 'one-stop shop' for third parties (such as doctors or banks) who need to determine whether someone claiming authority to act or make a decision on behalf of another person has this authority.
The VLRC is keen to hear from legal practitioners who work in this field. In particular, it seeks submissions on questions raised by the online register proposal including:
- Should an online registration system be created for enduring powers?
- Who should have access to a register and what safeguards might be needed to protect an individual’s privacy while allowing appropriate people to access it?
- Should registration be compulsory or voluntary. If registration is compulsory what effect should this have on unregistered appointments?
The consultation paper contains additional reform options and questions to guide submissions. A summary paper that contains a brief overview of the VLRC’s reform options as well as the questions that appear in the consultation paper is also available.
The VLRC has extended the date for submissions, which are now due by 20 May 2011.
The consultation paper is also available at www.lawreform.vic.gov.au.