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Potential financial elder abuse reforms welcomed by legal profession
New reforms around financial elder abuse and powers of attorney law may be closer than ever after the federal government released a consultation paper proposing wide-ranging changes to the law.
Lauren Croft
Reforms would mean the harmonisation of piecemeal state-based enduring powers of attorney (EPOA) laws, as well as improvements to current interstate recognition of EPOAs across Australia, which would make it easier for EPOAs to move across jurisdictions in border areas.
The consultation paper – Achieving Greater Consistency in Laws for Financial Enduring Powers of Attorney – also proposes the creation of a national set of resources to educate EPOA signatories – the elderly person, their attorney and witnesses – regarding their rights, roles and responsibilities.
National law firm Barry Nilsson welcomed the proposed reforms, describing them as “a huge step closer to where our legal system needs to be”.
However, Barry Nilsson wills and estate senior associate Emma Blay said that, disappointingly, the paper did not include the creation of a national register of financial EPOAs after the Standing Council of Attorneys-General ruled it out at its September 2023 meeting.
“While the proposed reforms address the front end of the EPOA process with strengthened requirements, criteria and education (for attorneys in particular), there is still an issue around the monitoring and regulation of the use of EPOAs in the long term, ultimately to ensure the attorney appointed is complying with their duties,” she said.
“At the very least, searchable state-based registers that confirm the existence of an EPOA and who prepared it would be very beneficial and ought to be considered as part of these critical elder abuse law reforms.”
Ms Blay said she supported the proposal for stricter eligibility guidelines and ongoing disclosure requirements for attorneys appointed under a financial EPOA, including excluding people in positions of potential influence, such as paid care or accommodation providers, as well as those who were bankrupt or had been convicted of dishonesty or domestic violence offences in the five years before an EPOA is enacted.
“The reforms aim to balance the choice of older persons about who they want to represent their interests against the need to protect the elderly from the risk of financial abuse by their chosen attorney,’’ she added.
“An attorney is in a position of trust and has considerable powers and discretion. Unfortunately, the reality is this decision making comes with a level of risk in the hands of the wrong attorney.”
In addition, Ms Blay added that she also supported the proposed new requirement for attorneys to “sign and date a statement of acceptance” in front of an “authorised witness”, confirming they were eligible to act as an attorney, understood their duties and obligations, and would comply with them.
“I would argue the reforms could go a step further and mandate education requirements for attorneys (by way of an online training module, for example) so as to ensure they properly understand their role and the kinds of decisions they can and cannot make,” she said.
“Attorneys are entrusted with powerful decision-making capabilities which should always be exercised in the best interests (and, where possible, with the input) of the person who has appointed them. They should also have a full understanding of their fiduciary responsibilities, which an authorised witness, such as a lawyer, can explain to them.
“Far too often, EPOAs are misused (sometimes inadvertently) and often by adult children. Many of these situations could have been avoided had the attorneys been properly informed and advised about their obligations, particularly to keep their personal assets separate and avoid conflict of interest transactions.”
The paper also includes a proposed inclusion of additional penalties for attorneys who misused their powers, which could serve as a deterrent, according to Ms Blay.
“Often, issues involving financial elder abuse only come to light when a concerned family member raises a red flag or when the elderly person dies,” she said.
“By that time, it can be too late (or time-consuming and costly) to set things right.”
Lauren Croft
Lauren is a journalist at Lawyers Weekly and graduated with a Bachelor of Journalism from Macleay College. Prior to joining Lawyers Weekly, she worked as a trade journalist for media and travel industry publications and Travel Weekly. Originally born in England, Lauren enjoys trying new bars and restaurants, attending music festivals and travelling. She is also a keen snowboarder and pre-pandemic, spent a season living in a French ski resort.
