Calls to crack down on powers of attorney practice

By Emma Ryan|20 January 2021
Adelaide

An independent body based in South Australia has become the latest to urge intervention on current law and practice regarding powers of attorney.

The South Australian Law Reform Institute (SALRI), which is based at the University of Adelaide, has called for the state government to address what it calls the “abuse” being carried out when it comes to enduring powers of attorney (EPAs).

The SALRI delivered a report to Attorney-General Vickie Chapman earlier this week, detailing vast recommendations, which it said will go a long way in preventing such abuse.

As per a statement from the body, these include but are not limited to: educational and operational measures to promote and enhance the use and operation of EPAs and the awareness of misuse; greater clarity of the roles, powers and responsibilities of an attorney, and who can act as an attorney, to be written into the law; updates to procedures and forms that clarify and emphasise an attorney’s responsibilities, and confirm that they understand their responsibilities; witnessing of EPAs by suitable people such as a JP, lawyer or police officer; and greater clarity and strength in the role of witnesses in ensuring that a principal has the capacity to create an EPA.

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The SALRI has also recommended the government look into a strict definition of incapacity written into the law; confirmation of incapacity by a medical practitioner before an EPA can take effect; a compulsory state and eventual national EPA register and a suitable agency to maintain it; and a new civil flexible low-cost remedy to deal with the misuse of EPAs and the South Australian Civil and Administrative Tribunal (SACAT) to handle cases of misuse of EPAs with the ability for the Supreme Court to hear complex or very large estates cases.

“We are making 120 recommendations about the role and operation of the Powers of Attorney and Agency Act 1984 (SA) including changes to the law and practice to clarify and improve the use and operation of EPAs in South Australia,” noted the director of SALRI, the University of Adelaide’s Professor John Williams.

“Our recommendations are drawn from extensive research and consultation with interested parties, experts and the community who expressed concerns about the financial exploitation of older South Australians.”

Deputy director of SALRI, the University of Adelaide’s Dr David Plater, expressed how there are many benefits of an EPA however there needs to be greater protections put in place to ensure they’re used appropriately.

They are an important expression of autonomy and a valuable and convenient legal instrument by which many people in the community can protect their financial and property interests in the event of their future cognitive impairment,” Mr Plater said.

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“Most EPAs seemingly work well but if the trust placed on an attorney is abused by them, then the effect of financial impropriety on a principal’s financial security can be a permanent and life-threatening setback. However, there must be a balance between addressing and preventing abuse whilst retaining and promoting the utility and use of EPAs. Our focus in reviewing the current law has been to protect the rights of the principal.”

LCA stance

Mid last year, Law Council of Australia president Pauline Wright said enhancing protections pertaining to the use of enduring power of attorney instruments (EPOAs) is a priority for the body and described it as being key to mitigating elder abuse.

We understand the establishment of a national online register of EPOAs will be considered by CAG and this has the potential to be an important safeguard against abuse,” Ms Wright said at the time.

“However, it is important to note that the Australian Law Reform Commission’s 2017 report on elder abuse emphasised that developing nationally consistent laws regarding EPOAs and a national model enduring document were necessary precursors to a national register.”

Calls to crack down on powers of attorney practice
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