Power of attorney changes on the way

Article published 24 November 2021

Power of attorney changes on the way

THE VOICE published an article two weeks ago outlining the mess that is enduring powers of attorney. The article concluded by stating that CPSA among other organisations is seeking a commitment from federal, state and territory governments to reform this area of law. A commitment was established at the latest meeting of Attorneys-General.

Currently, the eight states and territories of Australia all have their own laws that slightly differ in the way they legislate enduring powers of attorney and its difficult for institutions, like banks, to tell if an attorney document has been revoked or is a forgery.

Federal, State and Territory Governments all have an Attorney-General, which is a government minister that is responsible for protecting and promoting the rule of law in each respected Australian jurisdiction.

On 12 November a meeting of Attorneys-General was held. It was agreed that government officials are to develop recommendations for a nationally consistent approach to enduring powers of attorney to more effectively reduce financial elder abuse. Officials are to also consider models for a National Register of Enduring Powers of Attorney. Both actions must be considered and agreed on by the end of 2022.

In 2017, the Australian Law Reform Commission report into elder abuse made recommendations in this regard. Six years of consideration may mean powers of attorney instruments finally receive the amendments they desperately need.

The NSW Ageing and Disability Commission 2020-21 Annual Report pointed out the necessity of improving powers of attorney.

The report found that almost 30 per cent of allegations of abuse of older people that were reported to the Commission were financial abuse. The Commission stated that this abuse included financial exploitation, the misuse of powers of attorney and enduring powers of attorney, and theft.

The Commission also pointed out that if powers of attorney are misused to cause financial harm and these matters are not pursued by police, the NSW Civil and Administrative Tribunal (NCAT) may revoke a power of attorney, but it does not have the ability to order financial restitution.

Meanwhile the Victorian Civil and Administrative Tribunal (VCAT) may order financial compensation even if the principal (the person not able to make decisions in a power of attorney relationship) has died.

The Commission said improving existing laws that surround powers of attorney may also be essential in holding offending attorneys and preventing financial abuse.

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