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What to do when someone abuses their power under an Enduring Power of Attorney

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Attwood Marshall Lawyers Wills and Estates Associate, Larisa Kapur, joins Robyn Hyland on Radio 4CRB to discuss Enduring Powers of Attorney and what to do if you, or someone you know, is not being looked after properly by the person they have appointed to be their Attorney. This could be financial abuse by refusing to pay for necessities or using the funds for their own purposes. It can also be misuse through decisions on where you live or getting medical treatment. You can get help!

Understanding the difference between an Enduring Power of Attorney and a General Power of Attorney

An Enduring Power of Attorney (EPOA) is an enduring document which allows an adult (called “the principal”) to appoint someone they trust to make decisions for them. The appointment can begin immediately following the document being executed and continues when the principal loses capacity to make decisions for themselves or the principal can choose for it to be effective on loss of capacity, or from a certain date or event.

 The Queensland Public Guardian has an excellent summary of what the definition of capacity involves. There are also definitions in s.41 of the Queensland Powers of Attorney Act. Most Australian states and territories have similar legislation to QLD with respect to Powers of Attorney and Guardianship.

This is the key difference between a General Power of Attorney, and an Enduring Power of Attorney. A General Power of Attorney will end or is revoked immediately, if the principal loses capacity.

These documents are extremely powerful as they essentially are giving someone the power to make the same decisions you can make for yourself, including decisions about financial matters, health matters, and personal matters.

Personal matters relate to decisions about the principal’s health, care, and welfare, such as where and with whom they live, medical treatments and procedures the principal can receive, and support services they may need.

Financial matters relate to decisions about the principal’s financial or property affairs, including decisions about paying expenses, buying or selling investments, selling property (including the family home).

If you appoint someone that does not have your best interests at heart, there can be significant and dire consequences for the principal who is depending on that person to take care of them and their affairs.

How to determine which type of Power of Attorney document is right for you

Once someone loses capacity to make their own decisions, they can no longer execute a Power of Attorney. This is one of the reasons why it is so important to complete these documents while you are mentally fit and healthy, not just when your health is in decline.

With people living longer in today’s day and age, more people suffering from dementia and other cognitive illnesses, it is important to ensure that you are protected if something suddenly happens to your health, and you need someone to step in and make decisions for you.

Failing to have an Enduring Power of Attorney will mean that if you lose mental capacity, the only option left for your family is to apply to the relevant state administrative tribunal (e.g., QCAT in Queensland) to request to be appointed as the person’s administrator or guardian.

This process can take several months, and if there is any sign that there will be disputes between family members over decisions being made for the person, often the tribunal will choose to appoint the Public Trustee to look after that person’s financial affairs and the office of the public guardian for health and lifestyle matters.

As we know all too well, that can have dire consequences. Although the Public Trustee is intended to safeguard the rights, interests and wishes of the most vulnerable people in our society, unfortunately it is well documented just how much the Public Trustee fail to do so.

Every week Attwood Marshall Lawyers receive enquiries from people who want to have the Public Trustee removed from their position managing someone’s affairs, but this is no easy feat.

The best way to avoid this from happening is by making sure you execute an EPOA when you still have capacity, giving yourself the control over who you select to look after you and make important decisions on your behalf.  

Read more: Why the Public Trustees across Australia need a complete overhaul

Who is a good candidate to be an Attorney?

When selecting your attorney (or attorneys), the most important thing is to choose someone you trust implicitly and who shares your beliefs and values. People often choose their partner, a child, or a sibling to be their attorney, if that is someone that they are close with who they believe will always have their best interests at heart. Sometimes appointing your adult children to act jointly can be a big mistake, especially if they don’t get on well! That may well end up in the tribunal with the Public Trustee being appointed – something you want to avoid at all costs!

However, your attorney does not need to be a relative, nor do they need any specific experience or qualifications. They only need to be someone you believe will act in the manner you want them to. Having said this, being someone’s attorney is a very onerous task for many people and it is very important that whomever you choose is capable of doing the job.

Many people choose to appoint an independent professional to be their attorney, mitigating the risk of family members arguing about decisions being made, and ensuring that someone can fulfil the role without emotions or personal views influencing the decisions they are making.

Your attorney cannot be:

      1. someone who is your paid carer or has been your paid carer in the last three years
      2. your health provider
      3. your residential services provider where you live
      4. someone who has been bankrupt or is taking advantage of the laws of bankruptcy, if the appointment is for financial decisions.

    What to do if an attorney misuses their power

    If someone is abusing their position under an EPOA, and they are not making decisions in the best interests of the principal, simply put, it is elder abuse.

    Here are some FAQs often asked by people who have an attorney acting for them:

    “Can my attorney stop me from seeing my friends and family?”

    All adults (regardless of whether the adult has decision-making capacity) have the same human rights and fundamental freedoms as others in the community.

    An attorney must support the principal to maintain their supportive relationships with family, friends, and others.

    An attorney must continue to acknowledge and respect the role of family, friends, informal carers, and other persons who currently assist the adult to make decisions on an informal basis. This may include consulting with members of the adult’s support network.

    “What if I have dementia and I disagree with something my attorney is trying to do?”

    The role of the attorney isn’t to simply override all decisions of the principal.

    The attorney should presume the principal has capacity for a matter. They should support the principal to exercise their human rights and support the principal’s right to participate as much as possible in decisions affecting their life.

    “Can my attorney give gifts on my behalf using my funds?”

    The answer is yes, attorneys can use the principal’s money or other property to give gifts and donations unless there is a contrary intention in the Enduring Power of Attorney stipulated.

    Gifts and donations must be of a reasonable amount taking into consideration all the circumstances, including the principal’s overall finances.

    If an attorney is accessing the principal’s funds for their own benefit, this is financial elder abuse and should be reported immediately.

    What to do if you are concerned about someone misusing an EPOA

    If the principal has capacity – they can revoke the EPOA and serve the attorney notice of the revocation making their appointment null and void. Only once the pre-existing EPOA is revoked can a new EPOA be put in place and both the new document and revocation be provided to relevant places (such as banks, doctors etc.). 

    If the principle has lost capacity, then depending on the attorney’s actions there are different options available to try to have an attorney removed from their position. These include (but are not limited to):

    The Public Guardian and Public Advocate offices play an important role in investigating abuse of adults. The Public Guardian has a discretionary power to investigate complaints of allegations of abuse, neglect, or exploitation regarding an adult aged 18 years or over, and who does not have the capacity to make their own decisions.

    The purpose of an investigation is to assess the current decision-making arrangements for the adult and whether they are appropriate. Once the matter has been assessed, then you can proceed with action to ensure the adult is adequately protected from harm. 

    The office may provide formal advice to an attorney or decision maker about their role and can also make a recommendation to the relevant state tribunal if an alternative formal decision maker needs to be replaced.

    Attwood Marshall Lawyers – Leading experts in Wills & Estate Matters

    It is important to obtain a thorough understanding about Enduring Power of Attorneys as part of the overall estate planning process. These documents should be considered when you draft your Will to ensure you have all your legal affairs in order and your best interests are protected.

    An estate planning lawyer can explain the extent of the document, help you draft clear instructions, including setting out the decision-making autonomy you want your attorney to be able to have, and put in place the checks and balances that are necessary to ensure your attorney will do right by you.

    Attwood Marshall Lawyers have one of the largest, most experienced Wills and Estates departments in Australia, with dedicated teams who practice exclusively in estate planning, drafting Wills, Enduring Powers of Attorney, and Advanced Health Directives.

    For assistance to draft an Enduring Power of Attorney, or update your Will and other estate planning documents, please contact our Wills and Estates Department Manager Donna Tolley on 07 5506 8241, email dtolley@attwoodmarshall.com.au or book an appointment with one of our estate planning lawyers instantly using our online booking app.

    If you are involved in a dispute in relation to an Enduring Power of Attorney and need advice, we have a dedicated estate litigation department who can help you. For dispute resolution enquiries, please contact Amanda Heather on 07 5506 8245 or email aheather@attwoodmarshall.com.au

    If you or someone you know is suffering from elder abuse, there is support available:

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    Larisa Kapur

    Senior Associate
    Wills & Estates

    Contact the author

    Disclaimer
    The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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