Consistency in power of attorney laws could help prevent elder abuse

A person who is granted enduring power of attorney holds a lot of responsibility – and a lot of power.
 
‘These are really important documents that delegate authority to someone, basically giving them all powers to make decisions on behalf of someone else once a doctor confirms they no longer have decision-making capacity for themselves,’ Luke Wright, Relationship Manager for State Trustees Victoria, told newsGP.
 
For the most part, those who are granted enduring power of attorney use these powers legitimately and in the interests of the person for whom they have responsibility.
 
But there are, perhaps unsurprisingly, exceptions.
 
‘Sometimes enduring power of attorney documents can result in the agent or attorney making or doing unlawful things, transferring or misusing funds, so they can be a tool of financial elder abuse,’ Mr Wright said.
 
Professor Dimity Pond, a GP with a special interest in dementia and aged care, has found issues can occur as a result of family discord or personal problems.
 
‘Having access to that older person’s savings can become a really difficult issue if, say, the whole family isn’t in agreement about how money should be spent,’ she told newsGP.
 
‘It can also leave the older person open to abuse if that person with the power of attorney isn’t well-disposed towards them, or they have their own problems, such as a gambling addiction.’
 
Such troubles can be further complicated by the fact each state and territory currently has its own powers of attorney system.
 
Some issues are simply matters of practicality.
 
‘For example, if the family member is interstate and the older person is residing in New South Wales, it’s a bit difficult to get their power of attorney signed, because an interstate solicitor can’t witness that,’ Professor Pond explained.

‘It has to wait until the family member actually visits New South Wales, visits Mum or Dad and they go together to the solicitor to get it signed.’
 
Other complications can result in family disharmony, or open the door to more sinister designs.
 
‘If an older person is taken interstate, the original power of attorney doesn’t apply anymore,’ Professor Pond said.
 
‘For example, people in New South Wales might move their relative up to Queensland because it’s warmer. But then the power of attorney that belongs to the son in Sydney doesn’t apply in Queensland. So that part of the family [in Queensland] can do whatever they like, and there’s nothing the Sydney person can do.’

Such problems have led to calls for power of attorney laws to be made uniform nationwide, a suggestion the Council of Attorneys-General recently agreed to pursue in a staged approach.
 
Banks are also on board with this measure, with the hope it will include a national register of enduring powers of attorney.


Luke Wright, Relationship Manager for State Trustees Victoria, believes a national register of powers of attorney would be very helpful for GPs and their patients.

Mr Wright agrees that such a register would be instrumental in helping to prevent or detect instances of financial abuse of older people.
 
‘I could turn up to a bank today saying I’m someone’s attorney and present my document – which is a legal document, so it’s fraudulent behaviour to create it – but if you’re going to steal hundreds of thousands of dollars, it’s not a big step to create a document and misuse it,’ he said.
 
‘The bank is of course going to go through its due diligence, but a register would make the bank’s job much easier.’
 
Mr Wright believes uniform laws around powers of attorney would also make GPs’ jobs easier.
 
‘If I’m a GP, I want to know who makes decision about personal and medical matters, and a register can really assist there,’ he said.
 
‘With a national register, a doctor could go in and check.’
 
A register, plus uniform laws around powers of attorney, could also be helpful if a GP is suspicious a patient is experiencing financial abuse.
 
‘GPs play a big role in identification of the issue,’ Mr Wright said.
 
‘For example, what do you do if someone turns up for an appointment with their son and the son won’t let them speak, and they’re complaining they don’t have any money to pay bills?
 
‘As their GP, you know the patient has always been fine financially, and now their son’s divorced and moved into the home with them and they’ve got no money. What do you do?
 
‘At the moment, they’re the difficult questions because every state will be different.’
 
Professor Pond agrees the current situation can be difficult for GPs, and believes uniform national laws would be ‘enormously helpful’.
 
‘They’d be helpful for everyone with their scattered families these days, and they’d be helpful for the GPs and legal advisors looking after these estates, as well,’ she said.
 
Professor Pond is pleased to see measures being taken to address these problems now, as they will only continue to grow more pressing with Australia’s ageing population.
 
‘When you look at the numbers of people over 65 in Australia, they are increasing dramatically because we’re doing a good job looking after ourselves,’ she said.
 
‘We need to be a society that looks after people properly, and it’s not just a small minority of people now.
 
‘It’s an issue that never should have been a mess. But now it’s a very obvious mess, and we need to really sort it out.’
 
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