5.1          Enduring powers of attorney and enduring guardianship (together ‘enduring documents’) are important tools that allow older people to choose the person (or persons) who will make decisions on their behalf should they lose decision-making ability in the future. Enduring documents may also protect an older person who has lost decision-making ability from being exploited and abused by others.

5.2          However, enduring documents may facilitate abuse by the very person appointed by the older person to protect them. Evidence suggests that financial abuse is the most common form of elder abuse and that, in a significant minority of cases, the financial abuse is facilitated through misuse of a power of attorney.[1] Enduring documents are more commonly abused than non-enduring powers of attorney because a principal (the donor of the power) with diminished decision-making ability may not be able to effectively monitor the activities of their attorney and take action before significant loss is incurred.[2]

5.3          In order to address the abuse of older persons, the following proposals are made to reform enduring powers of attorney and enduring guardianship:

  • the establishment of a national online registration scheme for enduring documents;

  • the provision of significant safeguards in a national legal framework for enduring documents; and

  • the replacement of current forms of enduring documentation with a single ‘representatives agreement.’

5.4          These proposals preserve the important role that enduring appointments have for older people seeking to protect against a loss of decision-making ability in the future, while reducing the potential for those appointments to be misused.

5.5          This chapter is focused on enduring powers and does not apply to non-enduring powers of attorney.