World Elder Abuse Awareness Day
The International Network for Prevention of Elder Abuse declared 15 June to be World Elder Abuse Aware Day back in 2006. Maybe because of increasing awareness, the Australian Law Reform Commission finally tabled a report on Elder Abuse in Australia in June 2017, and how the legal system can address it.
The Report had 43 recommendations, across the areas of aged care, superannuation, enduring documents, banking, and other safe-guards. The recommendations aim to improve the legal system such that there are stronger frameworks to prevent elder financial abuse, institutional abuse, and rights abuse. However, we should also reflect that elder abuse also comes in the form of neglect, physical abuse, psychological abuse, and sexual abuse.
During the writing of that report, some legislation changes were introduced into Victorian legislation, with regard to Enduring Powers of Attorney. Formerly known as the Enduring Power of Attorney (Financial) and the Enduring Guardianship, these two documents have been reformed. The Enduring Power of Attorney Act 2014 (Vic) now allows someone to appoint an attorney not just in relation to financial and legal matters, but also in relation to personal and lifestyle matters.
What the Law Reform Commission report recommended about enduring powers of attorney to combat elder abuse was:
- Firstly, that certain safeguards against misuse of the enduring power of attorney be incorporated into State legislation. This was at least introduced with the new 2014 Victorian Act. For example, previously the police had to prove fraud to be able to charge an attorney for misusing their power. But now, there is a special criminal charge for attorneys doing the wrong thing under the appointment.
- Secondly, that State administrative tribunals should have the same jurisdiction as the Supreme Courts in relation to any cause of action or claim for equitable relief to perform their duties and should have the power to order any remedy available to the Supreme Court. VCAT, in Victoria, has substantial powers for investigation of the behaviours of attorneys, as well as making orders against attorneys for removal and reparation.
- Thirdly, that a national online register of enduring powers of attorney be established. Unfortunately this recommendation is unlikely to occur within the next decade. Each State legislation is inconsistent, but even the introduction of a Victorian register would be a step forward, as there is currently no such central compulsory place to do so.
As a solicitor who regularly prepares powers of attorney documents for elderly people, there are indications of elder abuse that I must also be aware of. These include:
- making sure that I have confirmation from a doctor that they believe the elderly person still has the mental capacity to give me instructions to prepare the documents,
- making sure that I am able to interview the elderly person alone, so I can get their instructions without the influence from family members, and
- making sure that the documents I prepare have extra clauses in them than the standard document, so that superannuation is addressed, access to the Will is addressed, recovering passwords to online accounts and the authority to control such accounts is addressed, as is dealing with the principal place of residence.
You also get to decide when the power of attorney starts. You may not want it to begin immediately, so you can put a condition on it about when it starts:
- upon incapacity – your Attorney will only be able to act on your behalf if a doctor provides a medical certificate or report that you can no longer make decisions for yourself
- on a specific date, or
- at such other time as nominated by you in the document.