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


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