Elder abuse is a significant legal and social issue, prompting calls for government intervention and tailored legislative responses. Sunday, 15 June, is World Elder Abuse Awareness Day.
Queensland Law Society (QLS) has taken a special interest in the prevention of elder abuse and is committed to advocating for rigorous, evidence-based services and policies to assist the victims of elder abuse and prevent further elder abuse within the community.
Elder abuse is in the spotlight due to the State Government inquiry into elder abuse in Queensland. QLS prepared a detailed submission to the inquiry, which drew from our members’ expertise in this area to highlight critical legal and policy issues and propose reforms to better protect older Queenslanders.
A significant focus of QLS’s submission to the inquiry relates to the abuse or misuse of enduring powers of attorney (EPOA). While EPOAs provide essential safeguards for older people with impaired capacity, they can also be used by attorneys to facilitate abuse, particularly financial abuse.
Abusive acts or omissions by an attorney under an EPOA for financial matters may include, for example, failing to pay the principal’s financial obligations or misappropriating the principal’s money or assets for the attorney’s personal use.
QLS has identified several areas for targeted legal and policy reform of EPOAs to address elder abuse experienced by older people with impaired capacity.
Inconsistent EPOA laws across states and territories
The creation and use of an EPOA is governed by Australian state and territory laws. However, EPOA laws across these jurisdictions are not uniform. Inconsistencies between jurisdictions can make it difficult for stakeholders who work across jurisdictions, such as financial institutions, health professionals, and aged care providers, to understand the applicable laws when dealing with an attorney. This makes it harder for service providers to determine whether an EPOA has been validly made and detect whether an attorney is acting beyond the scope of their powers.
QLS strongly supports developing nationally consistent laws governing EPOAs and a national model enduring document. These reforms will increase clarity and awareness for all national stakeholders and provide a foundation for national education campaigns about issues such as the valid creation of an EPOA and the rights and obligations of attorneys.
Lack of a national register of EPOAs
There is currently no nationally consistent approach toward the secure storage, production and verification of EPOAs. This makes it difficult for interested parties, such as financial institutions, to verify whether an older person has made an EPOA or whether an EPOA document being relied on is current or valid. Service providers could, therefore, inadvertently facilitate elder abuse by accepting instructions from an attorney under an invalid or revoked EPOA.
After nationally consistent EPOA laws and a model document have been implemented, QLS recommends exploring the development of a national register of EPOA documents.
However, before developing a national register, it will be necessary for the government to conduct detailed, evidence-based consultation with experts and stakeholders. For example, evidence of the effectiveness of a national register in combatting elder abuse will need to be reviewed. Privacy concerns will also need to be addressed regarding access to personal information contained in EPOAs and on any potential register. Additionally, significant issues regarding determining incapacity of a principal and determining the validity (and valid revocation) of an EPOA will need to be considered.
Inadequate attorney education
An essential part of EPOA reform is educating attorneys about the nature, effect and responsibilities of an EPOA.
QLS members have reported that many attorneys do not understand the significance of their appointment and their obligations to the principal, which can lead to breaches of their duties and elder abuse. In particular, many attorneys do not adequately understand the concept of capacity or supported decision making principles, so they often take over making all decisions for an older person, including decisions the older person should be supported to make themselves.
QLS suggests requiring an attorney to sign the EPOA document when it is created to confirm they understand and accept the appointment. Further, QLS suggests a witness be required to certify they explained the nature and effect of the document to the attorney. Although this may create additional costs and barriers to putting an EPOA in place, there are opportunities to facilitate greater access to authorised witnesses, such as allowing medical practitioners who have received appropriate training to witness EPOAs.
Additionally, as there may be a significant period between an EPOA being created and the principal losing capacity, QLS recommends providing attorneys with information, resources and training when the EPOA is activated to remind them of their obligations.
Inadequate service provider awareness
Similarly, QLS members have reported that service providers, including financial institutions, health providers and legal advisors, often have a limited understanding of EPOAs. This can lead to misuse or abuse of an EPOA going unchallenged or inadvertently facilitated by a service provider.
To address this knowledge gap, QLS recommends providing targeted community education for service providers, their staff and contractors. This targeted education should be aimed at helping service providers and advisors understand impaired capacity, the nature and effect of EPOAs including limits on the attorney’s powers, and the difference between supported decision making and substitute decision making.
It is particularly important to make it clear to service providers that a lack of capacity cannot remove an older person’s right to independent legal and non-legal advocacy, even if their attorney purports to prohibit it.
Conclusion
Many of the issues raised by QLS stem from a lack of awareness or understanding of EPOAs and the Queensland legislation governing EPOAs, capacity and guardianship. While the suggested reforms may not prevent a rogue attorney from knowingly attempting to abuse their powers, these reforms may assist service providers to detect the abuse or misuse of an EPOA at an earlier stage.
Further, the proposed reforms may reduce the misuse of EPOAs and inadvertent facilitation of elder abuse due to misunderstanding the attorney’s role and responsibilities.
Read more in the QLS submission here.
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