Push for tougher power of attorney laws to protect elderly

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Significant changes in Queensland’s guardianship legislation, aimed at reducing the financial abuse suffered by the elderly, came into effect on Monday, and there are calls for the rest of Australia to follow suit.

One of the biggest changes relates to power of attorney legislation, making it impossible for anyone to be appointed to the position if they have acted as the person’s paid carer in the three years prior to their appointment.

Victoria has legislation that prevents current paid carers from acting as power of attorney, while the rest of Australia has no laws stopping this from taking place at all.

An enduring power of attorney is a legal document in which a person appoints someone to make important financial and personal decisions on their behalf. The power continues if, and when, the person is unable to make decisions on their own.

A paid carer, for the purposes of the legislation, does not refer to someone receiving a carer’s pension or benefit, but rather someone being paid for providing the caring service for a person.

Law firm Maurice Blackburn is urging other states and territories to follow Queensland’s lead to ban paid carers being used as powers of attorney, describing it as an important safeguard against elder abuse.

Andrew Simpson, national head of wills and estates at Maurice Blackburn, said there was considerable trust invested in an enduring power of attorney, and any breach of that trust could have significant consequences.

“A power of attorney is one of the most important documents you’ll ever make. If you lose capacity, that person will potentially have complete control over all decisions relating to you and your affairs,” Mr Simpson said.

“Giving a paid carer power over the affairs of the vulnerable person they are paid to look after is in our view a dangerous blurring of professional and personal lines that increases the risk of financial abuse.

“We know there have been cases where a paid carer holding a person’s power of attorney has misused that power for their own benefit, such as taking money, transferring assets and incurring debt.

“We acknowledge the vast majority of paid carers do incredible work in looking after older and more vulnerable people in our community. But, unfortunately, there will always be some who will exploit that position of trust for personal gain.

“We welcome Queensland’s move to tighten restrictions around the use of paid carers as powers of attorney, and we call on all states and territories to follow Queensland and Victoria’s lead to help protect our elderly from abuse.”

Some of the other protections included in the Queensland laws include protection of whistleblowers and reforms to the role of the public guardian.

The reforms allow the public guardian the discretion to investigate a complaint that an adult was subject to abuse, neglect or exploitation even after the death of the person in question.

The broader protections in the new Queensland legislation also ensure that whistleblowers are protected from liability, not just for disclosing information about an actual breach of the legislation but all information that the person honestly believes, on reasonable grounds, tends to show a breach of the legislation, or would help in an assessment or investigation.

Do you think the rest of Australia should follow Queensland’s lead on legislation to protect the financial abuse of the elderly? Do you see any drawbacks in the Queensland legislation?

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Written by Ben

4 Comments

Total Comments: 4
  1. 0
    0

    Totally agree. Power of Atourney[POA] and/or Enduring Guardian orders [EG] have been found to be subject to gross abuse and misappropriation in many cases. As NSW hospital-based Social Worker I do come across serious cases of such abuse. Do find that the ordinary POA [non-enduring] is the order subject to improper execution. Not exclusive to close relatives or paid carers, but in some cases have found solicitors to be subject to suspicion. Another group I have experienced to be ‘suspect’ comes from religious group/church. Patient would have unquestionable trust but little knowing at their most vulnerable how exploitable they have become. I have submitted countless application to the NSW Civil and Administrative Tribunal [NCAT] to seek appointment of a legal Guardian and/or Financial Manager [FM]. In the majority of such applications the Trustee and Guardian have been appointed as FM.
    It is most imperative for all States to have the same legislation. Has to be an order that is applicable nation -wide. Have found in at least one case where the ‘carer’ jumped NSW border to obtain POA – in this instance application lodged with NCAT with successful appointment of Public Guardian and FM [with office of PubliccTrustee and Guardian].
    People [predominantly aged, demented, disabled etc] have been ‘swindled’ out of home and finances with this ordinary POA. Reality is that these groups of people are preyed upon. From my viewpoint authorities and governments have ignored the financial abuse of older and vulnerable people. Again my findings that it was not exclusively Financial abuse but also entailed the disproportionate power balance, standover and threatening behaviours on part of perpetrators, hence there’d be many unreported cases by the victims for fear of retiribution. In my pracitice it was central concern above all to assess and review the bona fides of those who hold orders but needs the patient/person to be able to consent to such examination. And of course, as stated earlier, for those who lacked cognitive capacity, NCAT applications were lodged.
    Could write reams on this…. but thanks for reading this far.

  2. 0
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    “Do you think the rest of Australia should follow Queensland’s lead on legislation to protect the financial abuse of the elderly? Do you see any drawbacks in the Queensland legislation?”

    Absolutely. I wonder why a paid carer is excluded but a carer paid by the government can be allowed to have the full rights under a Power of Attorney. We are told of family who abuse older family members and steal their money. I don’t know how to properly police any elder abuse but this legislation is a small step in the right direction.

  3. 0
    0

    All laws in Australia should be uniform. Fed up with the hypocrisy of one state laws being different to another.

  4. 0
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    A very vexed area and difficult to legislate for – not just carers but offspring are frequently the perpetrators. Offspring who in the past would have done the caring but nowadays don’t .

    In the old days an average person had, late in life, a fully paid for but modest house, a pension entitlement, and close offspring who were better off than they were at the equivalent stage in life and often contributed financially.

    Nowadays a fairly modest person often has a valuable house, a pension pot, and distant venal offspring who struggle to get on the “housing ladder” and who view them more as an inheritance waiting to happen than as people.

    Making offspring likely beneficiaries and also attorneys/donees (the terminology varies between states) presents a rather obvious conflict of interest.


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