Podcast: Elder Abuse Report: recommendations on enduring documents



Marie-Claire Muir: Hi I’m Marie-Claire Muir, Communications Manager at the Australian Law Reform Commission. The ALRC Final Report for its Elder Abuse Inquiry, Elder Abuse—A National Legal Response,was tabled in Parliament on 14 June 2017 with final recommendations for reform. I’m here with Matt Corrigan today. He’s a Principal Legal Officer at the ALRC and he was working on the elder abuse Report. Matt, one of the particular areas you were looking at was enduring documents. Perhaps you could start by telling us what enduring documents are?

Matthew Corrigan: There’s really two principle types of enduring documents and with the added complexity that some of those documents are combined in other states and territories. Essentially, enduring documents are documents where an individual, which we’d call the Principal, gives legal power to another person, either an enduring attorney or an enduring guardian, to make financial or property decisions in the case of enduring attorney appointments, and health, lifestyle and medical decisions with respect to enduring guardianship arrangements.

Marie-Claire: Ok. So why are they important?

Matt: Well they’re important part for everyone in planning for circumstances that might arise as we get older, as we age. One of the things that happens is that we may be more susceptible to losing or having impaired decision-making ability and in that circumstance it’s important to have someone who we know and trust to make decisions for us, if that eventuality were to arise.

Marie-Claire: If enduring documents are commonly used as part of elder abuse, why should people continue to make enduring documents?

Matt: So it is true that the evidence that we have from a range of sources that enduring documents are used in some form in a significant minority of cases of elder abuse, principally financial abuse – so using the power of attorney to undertake transactions that are not in accordance with the wishes of the person who’s the Principal. The reason that we’re saying that, not withstanding those concerns and those instances of elder abuse, that people should continue to make enduring documents is that they are really important tools that allow the older person choice as to who will make that decision if they lose or have impaired decision-making ability. In the absence of making enduring documents, if that eventuality were to arise it would be left to a tribunal to appoint someone, perhaps even a trustee company where the person doesn’t even have a personal relationship with the decision maker on their behalf. So what our recommendations do, Marie-Claire, in this report, is really try and make reforms to enduring documents to ensure that the risk of elder abuse through enduring documents is minimised and we strengthen the positive aspects of those enduring documents in terms of having individual choice and control over the person who will be making decisions on our behalf if we lose decision-making ability.

Marie-Claire: So they’re important tools for helping people make choices about their future but going back to how they can be used to perpetrate elder abuse, what would be some common examples of how that happens?

Matt: We’ve heard a range of examples of what we would consider either abuse or misuse of enduring documents. A lot of the cases that were presented to us as part of our elder abuse inquiry were not cases of people doing bad things, but they were cases where perhaps the attorney or the guardian didn’t really understand the nature of their role and what their powers were and what the limitations were. You’ll see in our Report a lot of our recommendations go to ensuring that when people are appointed as an enduring attorney or guardian that they understand the nature of their role and their responsibilities. To a lesser extent there is some deliberate abuse of enduring documents and some of the examples we saw were essentially arranging for an older person to make an enduring document appointing a person in circumstances where it was alleged that that person really didn’t have decision-making ability. We have examples where there were multiple enduring documents signed and it was unclear as to the order of those documents. They hadn’t be properly revoked and so there were multiple people alleging they had authority to act. We’ve also seen examples where a forgery or amendments to enduring documents in circumstances where there wasn’t consent to those arrangements. There’s a broad spectrum from unintentional misguided conduct through to fraud, and I think in that context it is always mindful to remember that these are voluntary appointments and the vast majority of people are acting as an attorney or guardian with the best of intentions and often in very difficult circumstances.

Marie-Claire: What are some of the key recommendations we’ve made in this area and given the examples you were just talking about of elder abuse in relation to enduring documents, how would these recommendations help prevent those situations from arising?

Matt: We’ve got, essentially, three key recommendations in respect of enduring documents. The first is to establish a register of enduring documents. The register is really designed to enable people to identify documents that have been made so when someone goes to the bank and presents an enduring power of attorney the bank can quickly look online to confirm that that is a current and non-revoked power of attorney. That addresses one of the key concerns in terms of multiple documents being potentially floating around and a lack of clarity as to which is the most current one. And that’s of great concern in terms of the older person’s wishes, but also creates difficulties for banks and other institutions that are trying to facilitate transactions that rely on that enduring document.

The register will also help identify when an enduring document has been appropriately, what we call ‘activated’, which means that the attorney is actually using the document, recognising that in a lot of cases these are made often decades in advance and they’re not used and they don’t come into force until someone has lost or has impaired decision-making ability.

The second suite of reforms that we proposed are really designed to build in safeguards and this goes to the idea that, we said at the start of this chat, that enduring documents are both really, really important in terms of upholding individual choice and autonomy, but they can be abused. The types of safeguards that we think are important are ensuring that these documents are appropriately witnessed and part of that witnessing requirement is ensuring that the attorney and the guardian actually understands the nature of these appointments, that they don’t just sign it without thinking about the obligations that they’re taking on. We think that’s a really important reform to improve understanding of these documents.

The third reform that we’re proposing is that state and territory tribunals have the jurisdiction to provide compensation where these documents are abused and we think having an easily accessible forum for address will provide greater access to remedy in the rare event that these documents are abused. We think taken together the register, the safeguards and the compensation through the tribunal, that we can provide a robust framework for enduring documents that recognises that they are important planning tools and to help minimise the risk of elder financial abuse

Marie-Claire: Great, well thank you for talking us through that. Enduring documents are just one aspect of the Elder Abuse Inquiry and the recommendations for reform. To find out more, you can download the whole report at www.alrc.gov.au. Thanks Matt and congratulations on a great report.

Matt: Thank you.