Enduring Powers of Attorney review aims to reduce financial elder abuse

By Eileen Wood

The Standing Council of Attorneys-General is looking into changes to financial Enduring Powers of Attorney. Picture Shutterstock

Seniors' advocacy groups are keenly awaiting the publishing of a report expected to recommend major changes to Australia's financial Enduring Powers of Attorney laws.

In September the Standing Council of Attorneys-General released a consultation paper covering a range of key improvement areas in financial EPOA laws in an effort to stamp out elder abuse resulting from inadvertent or intentional misuse of EPOAs. Submissions closed on November 29, 2023.

Powers of Attorney are formal legal arrangements allowing a person (the principal) to appoint another adult or legal persons such as Public Trustees or private trustees, to make certain decision on their behalf. EPOAs unlike general powers of attorney are designed to continue should the principal lose their decision making capacity.

Currently EPOA laws are complex and differ between states which can cause practical issues and costs and there is a strong move for greater consistency.

John (79) appointed his wife as an Enduring Powers of Attorney with the help of a solicitor.

A few months later, after his health had deteriorated and at a time when his decision-making capacity was in question, his daughter took him to a police station and, with a Sergeant serving as a witness, had him sign a new EPOA appointing her. This was later disputed by his wife.

After a family conflict Walid (77), revoked his EPOA while in hospital. His daughter retained a copy of the original EPOA and Walid worried that his daughter might use the old EPOA agreement to make decisions in relation to his property and finances.

These are just two examples of the difficulties surrounding EPOAs and were provided to The Senior by Community Legal Centres Australia.

The consultation paper said greater consistency would reduce elder abuse, improve familiarity and understanding of EPOAs, enabling national education resources and greater alignment of services and and greater oversights.

The paper presents detailed proposals on the execution of an EPOA, witnessing arrangements, acceptance of appointment by an attorney, revocation and automatic revocation,attorney eligibility, attorney duties and access to justice issues (jurisdiction, compensation and offences).

According to Elder Abuse Awareness Australia some ways in which a EPOA can be misused leading to elder abuse are:

• Making decisions the attorney is not authorised to make
  
• Not consulting the older person about decisions and drawing on any decision-making capacity they may still have
• Making decisions that align with their own preferences and values rather than the older person's
• Not following the older person's instructions
• Not keeping accurate records of transactions
• Not keeping the attorney's money separate from the older person's (for example, not paying separately for their shopping and the older person's when shopping for both at the same time)
• Denying the older person their rights
• Controlling who the older person spends time with.

The Association of Independent Retirees has called on government to legislate quickly to reduce financial elder abuse.

Action to reduce financial abuse using powers of Attorney should be a priority for government, said Committee member of the St George AIR Branch Neil Birdsall.

Neil Birdsall

"Recent reports of adult children abusing their powers and defrauding parents should be a reminder to government that action is needed now," Mr Birdsall said.

"The wheels of government seem to be turning too slowly on this matter and these cases are on the increase" said Mr Birdsall. "The Association of Independent Retirees is calling for action."

A joint submission to the consultation by the Older Persons Advocacy Network and Council on the Ageing (COTA) Australia said any changes to EPOA should ensure the human rights of the older person, should be person centred and easy to use and understand, as well as being accessible in terms of format and language, and across rural, regional and remote areas or where internet connectivity can be problematic and should ensure informarted choice.

The wheels of government seem to be turning too slowly on this matter (financial Enduring Powers of Attorney) and these cases are on the increase.

- Neil Birdsall Association of Independent Retirees.

Read the consultation paper: consultations.ag.gov.au/families-and-marriage/epoa

If you are experiencing elder abuse of any kind or believe someone you know is being abused contact: 1800 ELDERHelp (1800- 353-374) a free call phone number that automatically redirects callers seeking information and advice on elder abuse with the phone service in their state or territory.

If you are in immediate danger call triple zero (000)

Lifeline is a crisis support service for people who are feeling overwhelmed or having difficulty coping. You can call Lifeline on 13-11-14 (available 24/7).

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Enduring Powers of Attorney review aims to reduce financial elder abuse