15 June 2017 has been designated by the United Nations General Assembly as World Elder Abuse Day. On this day, Gillian Hunter, Lawyer with Snedden Hall & Gallop, is raising awareness of the mistreatment and abuse of members of the elder community. This is an issue that is serious and, anecdotally, widespread across Australia.
Elder abuse is not necessarily the infliction of physical harm on a vulnerable elder. Abuse can include any behaviour or action that harms an older person, such as:
- Financial abuse
- Psychological abuse (including social abuse)
- Sexual abuse (including non-physical actions such as obscene language)
- Chemical abuse (including inappropriate use, underuse or overuse, of prescribed medication)
Elder abuse in the ACT
There is little in the way of concrete statistics regarding the prevalence of elder abuse in the ACT community. It would appear from the case law that the most common form of elder abuse is financial in nature.
Elderly abuse often occurs within a relationship of trust and in the vast majority of cases, the perpetrator and victim are related.
What can I do to reduce the likelihood of financial exploitation or abuse when I am vulnerable?
An enduring power of attorney (“EPA”) is an important legal document that gives you the power to specify a person (known as an attorney) who will manage your affairs and make decisions on your behalf. The attorney can make those decisions in the event of physical or mental incapacity occurring as a consequence of conditions such as brain damage, dementia, unconsciousness, Alzheimer’s or serious injury. An EPA allows you to specify what decisions your attorney can make on your behalf. For example, you can give your attorney the power to make financial, property, personal and medical decisions for you while you are mentally or otherwise incapacitated. In addition, you can limit the types of decisions your attorney can make on your behalf.
What if I don’t have an EPA in place and I am rendered incapacitated?
There is a common misconception that your next-of-kin will automatically have the authority to make financial, property, personal or medical decisions for you while you are mentally incapacitated. That is not the case. To obtain those rights, your proposed guardian or financial manager would need to make an application in the Guardianship division of the Australian Capital Territory Civil and Administrative Tribunal (ACAT). Importantly, the ACAT application process does not place limits on who is eligible to make an application for decision-making authority on your behalf. This creates the possibility that the wrong person with an unconscionable motive may be granted the right to manage your finances or make significant decisions about your healthcare or personal care matters.
Proactively creating an EPA ensures that you have control over who makes important decisions on your behalf.
What are the obligations of an attorney?
The attorney has many obligations to the person creating the EPA (known as the principal). These include:
1. Avoiding a conflict of interest
Unless expressly authorised by the enduring power of attorney instrument, the attorney must avoid transactions which result, or may result, in conflict between his/her duty to the principal; and either his/her interests or that of a relative, business associate or close friend; or another duty he/she may have.
2. Record keeping
If the attorney has been appointed to act in respect of property matters, the attorney must:
- Keep accurate records and accounts of all dealings and transactions made under the enduring power of attorney instrument, and
- Keep the principal’s property separate from his/her own, unless the property is owned jointly by the attorney and the principal;
3. Medical treatment
The attorney must not ask for medical treatment to be withheld or withdrawn from the principal, unless the attorney has been expressly authorised to consent to the withholding or withdrawal of treatment and has consulted a doctor about the nature of the principal’s illness, any alternative forms of treatment available, and the consequences of the principal remaining untreated. The attorney’s decision should be on the basis of what the principal would ask for if the principal could make a rational judgment, and were to give serious consideration to the principal’s own health and wellbeing.
4. General principles
There are general principles to which the attorney should adhere. These principles, which are aimed at protecting the rights of the principal, are set in the Powers of Attorney Act 2006 and include important decisions concerning:
- Access to family members and relatives
- Human worth and dignity
- Role as a member of society
- Participation in community life
- Quality of life
- Participation in decision making
- Individual taken to be able to make decisions
- Maintenance of existing supportive relationships
- Maintenance of environment and values
- Health care and medical research
What if an enduring attorney misbehaves?
The misuse of an EPA can be very serious. Often the damage is done before anyone realises what has been going on and by that time, assets and property may have been irretrievably lost.
Unless a problem has been flagged to the attention of someone else (such as a family member, friend or acquaintance), who then decides to take action, it is likely to go undetected. This highlights the importance of appointing someone that you trust to make decisions on your behalf.
However, there are certain mechanisms in place for calling an attorney to account for their actions, sanctions for misuse of an EPA and some remedies available to the victim of the failure of the attorney to uphold their obligations and responsibilities.
if you suspect that someone is misusing an EPA (be that your own or, someone else’s who is incapable of doing anything about the situation) you should obtain urgent legal advice.
Snedden Hall & Gallop can assist you
The Wills & Estate team have expertise in preparing an enduring power of attorney. We can work with you and your attorney to ensure that your wishes are communicated and documented and you can specify what decisions your attorney can make on your behalf. At Snedden Hall & Gallop, we have vast experience in ensuring that our clients are supported in the creation of their important personal documents including wills and EPAs. In addition, we have a strong litigation team who can assist you if an attorney misuses their power.
Please contact us by phone on (02) 6285 8000 or by email.