Podcast: Elder abuse law reform proposals on enduring documents and family agreements



Marie-Claire Muir (MCM): Hi. I’m Marie-Claire Muir, Communications Manager at the Australian Law Reform Commission. I’m here with Matt Corrigan who’s a Principal Legal Officer at the ALRC and he’s been working on our Elder Abuse Inquiry. He’s been focussing in on a few different areas, but today we’re going to talk about enduring documents and family agreements. So Matt, to begin with, can you give us a brief description of what we’re talking about when we talk about enduring documents.

Matthew Corrigan (MC): Hi Marie-Claire. Enduring documents are essentially documents that an individual puts in place with another individual so that that person can act for them in the event that they lose legal capacity. They vary in their form and structure depending on the state or territory that you’re in, so in Victoria and Queensland there is an enduring power of attorney which covers both financial as well as lifestyle and personal decisions, such as where you would like to live and those sorts of things, whereas in New South Wales there’s a separate enduring power of attorney and an enduring guardian. In South Australia there is a different model again where they have advanced care directives under which you can appoint a substitute decision making.

The essential feature of all these agreements is that you are appointing somebody else to act on your behalf in the event that in the future you lose decision making ability.

MCM: OK, so what were some of the problems that you are hearing from stakeholders about?

MC: Essentially, in relation to the powers of attorney in terms of financial abuse we were hearing about concerns being raised that people using those documents after they had been revoked, so undertaking financial transactions after the agreement had been revoked and there is no real way to confirm the accuracy or validity of a document in those circumstances. We’re also hearing about circumstances in which there is concern that the agreement was put in place after the person had lost capacity so they weren’t fully aware of the arrangement they were entering into and the effect that that was having and so that the person was making decisions in circumstances where the person wasn’t fully aware of the consequences of that.

Similarly, in terms of enduring guardianship again concerns that these documents can be used after they’ve been revoked and that these are very personal and important decisions about where you’re going to live, how you’re going to live and what type of medical treatment you have and not have and the need to ensure that those agreements are only put in place where the person has the capacity to understand what they are agreeing to.

MCM: We’ve made proposals for reform in this area, can you talk us through those and how they will address the problem?

MC: At first glance it may seem a little daunting in terms of enduring documents, we’ve made 13 proposals but essentially those 13 proposals can be grouped into three broad categories of proposals. The first is about establishing a national online register of enduring documents. This is not something that’s a new idea that the ALRC has come up with. There’s been a long conversation throughout a number of bodies, by parliamentary bodies at the state and territory level and also in the Commonwealth Parliament about the need for an online register, so to actually have a place where these documents are stored and recorded, they can be verified and ensure that these documents only operate when they are genuinely authorised by the person.

The second group of proposals is essentially looking at the range of safeguards that have been developed across the States and Territories over the last few years and seeing whether we can develop a suite of those safeguards that could apply nationally to bring consistency and ensure that we have the best possible protections in each state and territory. So the key safeguards there include: enhanced witnessing requirements, so ensuring that—and this goes to what we were just discussing—ensuring that there is no duress around the signing of these documents, ensuring that there is some certification that the person understands the nature of the document that they’re signing when they’re making these arrangements, so reducing these concerns around people making these documents when they don’t have capacity; providing mechanisms for compensation, at the moment it’s very difficult if there is abuse of the documents to get a remedy so we are looking at proposals that come out of Victoria and other places that provide low cost mechanisms for compensation through tribunals. Looking at also making sure that the safeguards are around conflicts of interest and making sure that there are protections from attorneys making decisions that may not just be a benefit to the principal but have some personal benefit to the attorney themselves and making sure that there’s increased scrutiny in that situation.

The third group of proposals is really looking at changing the nature and the description of these agreements so that they’re better understood. So, terms like enduring power of attorney or enduring guardianship are not well understood in the community. There’s a misunderstanding about the nature of the power and responsibilities and so we think that choosing language that better describes what these agreements actually are is important. So we’re proposing that they be renamed representatives agreements, reflecting that when you’re acting on behalf of someone else under these document you’re essentially representing the person. You’re not taking away what they may wish or desire but you are giving effect to those wishes and preferences and rights by representing the person. We think that whilst that’s a longer term reform its really important that there’s better community understanding and awareness of how those agreements work and what are the benefits for the principal and the representative and also what are some of the challenges in that relationship.

MCM: Great, thanks for that. Now if we can jump over to family agreements, can you describe to us what family agreements are and again what are the problems that you’ve found exist around family agreements?

MC: Family agreements come in many different forms. The essential ingredient is that you have a situation where an older person may move in with their children or a child and contribute in some way to that property. So that may take many different forms. That may be that the older person sells their house gives the proceeds to one of their children, the child then builds a granny-flat out in the backyard for mum to live in or extends the house and essentially there is some form of co-living in that arrangement so that there is an expectation from the older person that by living closer to their family that they will be able to access support and care that they would otherwise have.

These agreements are generally very good for the older person and it means that they are closer to their family they can potentially live independently for much longer than they may otherwise do so. What’s come up in our consultations is that these agreements can fall down. It may be that mum’s child and the child’s partner separate, the house needs to be sold and the consequences of those changed circumstances, there is quite a degree of concern that the older person may be financially disadvantaged because these agreements are typically not in writing, they’re very loose arrangements, there’s a real sense that ‘oh we’re family so we’ll be able to work it out’. But when these things break down it’s often a lot harder to resolve than people may have expected.

MCM: So what have we proposed in this area?

MC: So essentially what we’ve proposed is that what is really needed is a low cost and less formal mechanism to assist parties to resolve these disputes. At the moment when a family agreement of this type breaks down the only way to enforce rights is through Supreme Court action which is incredibly expensive, incredibly lengthy and very complex, and the outcomes for the older person are very uncertain. Just because the person has suffered lose doesn’t mean that the law will recognise that they have an action and an entitlement to compensation. Those ingredients really are very dissuasive from taking action and enforcing your rights. The older person is incredibly vulnerable, they’ve lost their principal asset, they’ve also in many circumstances lost their only home. What we think is important is that there be a tribunal in each state and territory that can help the older person and family members resolve these disputes in a low cost, informal manner and having a look at, not just the financial contributions of the parties to the property, but also the contributions that each party made in terms of caring for one another and supporting one another and trying to come to a settlement through the tribunal that recognises those contributions.

MCM: Great, thanks for that. The ALRC’s Elder Abuse Discussion Paper was released in early December. We’re now seeking submissions from the public. We want to know what you think about these proposals, if we’ve hit the right mark. You can get your submissions to us by 27 February 2017. You can email them or use an online form or just give us a call.

Thanks very much.