New push for power of attorney law reform
Two decades of inaction in Australia is long enough, says Age Discrimination Commissioner. Here’s why change is important.
Calls for national consistency in laws governing enduring power of attorney have been renewed, eight years after they were proposed by National Seniors Australia as being crucial in the fight against elder abuse.
In 2016, NSA recommended to the Australian Law Reform Commission that the laws be strengthened and made consistent across states and territories.
The reform would help minimise financial loss in later life, which can be devastating because older people often don’t have the means to make up that loss.
Unfortunately, people don’t always seek help and identifying abuse can be hard. It can go unreported as it happens in the privacy of homes, and by people in positions of trust.
Now, the recently appointed Age Discrimination Commissioner, Robert Fitzgerald, is urging governments to act to achieve national consistency.
NSA congratulates Mr Fitzgerald on advocating for this important reform by bringing it to the attention of the public and governments.
His support follows the release of a report that found significant gaps in Australians’ knowledge about their rights and responsibilities around the legal document – which is exacerbating the risk of financial elder abuse.
An enduring power of attorney allows a person to appoint someone else to make financial and legal decisions on their behalf, including if they become unable to do so in the future due to illness, cognitive decline, or other circumstance.
The commission’s report, Empowering Futures, surveyed more than 3000 adult Australians to understand current levels of awareness and use of these legal documents and what Australians did or did not know about financial enduring powers of attorney.
The commission found enduring documents are widely valued for providing peace of mind and for empowering people to take control of how future decisions affecting their lives will be made, however:
- There is limited public awareness about them
- Most Australians (87%) have not set one up for themselves.
The research found critical gaps in people’s knowledge and understanding about how enduring powers of attorney should work, which can leave them vulnerable to potential abuse.
Older people, especially, face being exploited by the misuse of these documents, whether from ill-intent or ignorance.
While many were aware that things could go wrong, few are equipped to take the necessary steps to protect themselves.
The report recommended federal, state, and territory governments prioritise the creation of nationally consistent financial enduring power of attorney laws and establish a national register.
It also recommended governments:
Raise community awareness about these legal instruments and the value of having one in place
Develop and deliver national educational materials, such as a dedicated website and training courses
“All Australians, regardless of age or ability, have the right to live with dignity, security, autonomy, and control over their lives and wellbeing,” Mr Fitzgerald said.
“An enduring power of attorney is a critical option to give people that control, but most Australians know very little about it. If people do not understand their rights and responsibilities, it can drive misuse and abuse – severely hurting the people this legal document is meant to protect.”
The commissioner acknowledged the long and difficult history of support for reforming the nation’s power of attorney laws.
“Two decades of inaction in Australia is long enough. The time to act is now,” he said.
“I look forward to working with all levels of government, and the relevant bodies, to help better safeguard older people’s rights, wishes, and preferences in future decision-making.”
Among the report’s other key findings:
Only half of people with an enduring power of attorney (52%) sought professional advice before creating one, and just a quarter (25%) of those currently acting as appointed decision-makers felt they understood their responsibilities very well when they started their role
Concerningly, nearly two in five (37%) had granted an enduring power of attorney to someone who showed characteristics identified as risk factors for perpetrating elder abuse
Very few Australians (6%) felt they knew a lot about financial enduring powers of attorney, while more than a third (35%) felt they knew nothing despite some of them being involved in the process in some way.
Australians overwhelmingly (85%) agreed that more education was needed on financial enduring powers of attorney. Having information that is standardised across the entire country was identified as a top need (93%).
“The way forward is clear. As recommended in our report, and by numerous inquiries going back almost 20 years, national consistency in legislation is the first step to both reducing confusion and creating a coherent national approach that fills the knowledge gaps,” Mr Fitzgerald said.
Read the report, Empowering Futures: A national survey on the understanding and use of financial enduring powers of attorney.
Related reading: NSA, Human Rights
