Registration

Recommendation 5–3               A national online register of enduring documents, and court and tribunal appointments of guardians and financial administrators, should be established after:

(a)         agreement on nationally consistent laws governing:

         (i)      enduring powers of attorney (including financial, medical and personal);

         (ii)     enduring guardianship; and

         (iii)    other personally appointed substitute decision makers; and

(b)         the development of a national model enduring document.

5.99     A compulsory online national register has the potential to be an important safeguard against abuse. The ALRC acknowledges that, in the absence of a completed prevalence study, the exact incidence of elder abuse involving an enduring document cannot be quantified. This lack of quantification necessarily complicates any assessment of the benefits and costs of introducing a national register of enduring documents.

5.100  However, the ALRC is satisfied, based on studies of elder abuse hotlines, qualitative studies, submissions to the ALRC and consultations with stakeholders, that abuse of enduring documents is a problem, and that the extent of the powers granted by enduring documents means that any abuse is often relatively serious in its financial impact.[108] The ALRC is also satisfied, based on international studies, that an appropriately designed register of enduring documents can assist in reducing elder financial abuse, while not being so burdensome as to discourage the use of enduring documents.[109]

5.101  The ALRC recommends that the online registration scheme should be user-friendly and low cost.[110] Privacy is also a key issue and access to information on the register should be restricted.[111] Consistent with research, the register should be designed to provide greater oversight over enduring attorneys/guardians to the extent that such oversight does not place an excessive burden on either the principal or the attorney/guardian. For example, registration and activation[112] should generate automatic notification to the principal and individuals chosen by the principal, with the ability for the principal to customise the notification process at the time of initial registration. The identification of both signed and active documents offers an opportunity to review decisions as to loss of decision-making ability in relation to a particular type of decision (eg financial matters).

5.102  The register would allow only one enduring document of a particular type (ie financial or personal) to be registered at any given time, ensuring that documents are properly revoked and that revoked instruments are unable to be used.[113] The register would also extend to guardianship and financial management orders made by a court or tribunal. It is not proposed that registration would affect the validity of court or tribunal orders. The national online register would replace state-based registration schemes that principally operate with respect to land transactions.

5.103  ‘Advance care directives’ should not need to be placed on the new register, because it is already possible to add ‘advance care directives’ to an electronic health record—the online recording and storage of individual medical records called ‘My Health Record’.[114] While the ALRC suggests that enduring documents should be separately registered to the ‘My Health Record’, to protect the sensitive medical information contained in these records, information technology solutions should be explored so that the two databases can be accessed using a single portal by health professionals who need to access both sets of information.

5.104  Recommendation 5–3 is limited to enduring powers of attorney and not applied more broadly to non-enduring powers of attorney. The distinction between the two is drawn, firstly, because of the link between enduring documents and planning for later life.[115]

5.105  Secondly, the key safeguard available in respect of general powers of attorney is the ability of the principal to revoke the power at any time. With an enduring document, a principal 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.[116] Accordingly, there is significantly greater risk of loss and the losses may be larger. The ALRC acknowledges submissions that raised concerns that the absence of a register of general powers of attorney may lead to a shift towards greater use of general powers of attorney and greater abuse. This should be monitored and addressed as part of the implementation and review of the register.[117]

5.106  While much of the focus of stakeholders was on financial abuse facilitated through an enduring power of attorney, stakeholders also discussed abuse of enduring documents by enduring guardians. There was also evidence that third parties sometimes simply did not know of the existence of an enduring guardianship arrangement, which led to the older person’s choice of representative not being respected.[118] For these reasons, it is proposed that enduring guardianship appointments should also be registered. This will also complement the proposed registration of tribunal orders, including guardianship orders.

5.107  The successful implementation of a register will require effective transitional arrangements to ensure that existing instruments remain valid for a prescribed period, with an option for them to be added to the register. Awareness raising and education about the need for existing documents to be registered will be required during the transition period.

Enduring documents may be abused

5.108  The idea of a register for enduring documents and tribunal appointments is not new. Since 2007, a number of reviews by state and territory bodies have recommended the establishment of a register to protect against misuse.[119] For example, in 2016 a NSW Legislative Council Committee noted:

These instruments (enduring documents) fundamentally rely upon an attorney honouring the significant trust placed in them by the principal. It is therefore critical to the integrity of the enduring power of attorney system that the law does all it can to safeguard that trust.[120]

5.109  The University of Newcastle Legal Centre explained to that NSW Legislative Council Committee:

It is too easy for an attorney to become a rogue attorney and not have any checks made until things have gone a long way wrong … The idea is that  [a register] would allow an easy check to see who has been appointed but it would [also] allow someone to record a revocation. At the moment a revocation just takes place by individuals, the previously appointed attorney, in writing saying that their power has been revoked. If we do not know their address there is no certainty that person receives it which means that is also complicated.[121]

5.110  In the Equality, Capacity and Disability Report, the ALRC recommended that the Australian and state and territory governments develop methods of information sharing about substitute decision-maker appointments, including enduring attorneys and guardians. In particular, the ALRC noted that information sharing could take the form of an online register of appointments.[122]

5.111  The ALRC also received a broad range of submissions to this Inquiry supporting the establishment of a register.[123] Those submissions are replete with examples of elder abuse of enduring documents.[124] Three factors appear to facilitate abuse:

  • principals with diminished decision-making ability may have limited ability to monitor the activities of their attorney;

  • family members are most commonly appointed as attorneys and this relationship of trust makes it less likely the principal and third parties will question their actions; and

  • there is generally a limited understanding in the community of the powers and duties of the attorney.[125]

A register may reduce abuse

5.112  Registration would assist in ensuring that enduring documents are operative only in circumstances genuinely authorised by an older person, upholding choice and control. The establishment of a register would:

  • ensure that only one relevant enduring document can be registered at any one time;

  • assist to identify those documents that are active because either they commence immediately or because it has been appropriately confirmed, through a notification scheme that there are no immediate concerns, that the assessment of loss or impairment of decision-making ability is inaccurate; and

  • provide clarity as to the precise roles and powers of the attorney.

5.113  The ECLC submitted that a register would ‘help minimise the extent to which these documents are misused, forged or amended without consent or knowledge of the older person and their families. It will also be helpful in cases where the original document has been lost or destroyed’.[126]

5.114  This view was supported by academics who noted:

Registration has become popular as a way of ensuring the effectiveness of enduring powers of attorney as a vehicle for recording a principal’s wishes. A common issue arising is confusion in determining whether a valid enduring power of attorney exists and, if so, who the appointees are and what are the wishes of the principal the instrument reflects.[127]

5.115  In relation to providing specific protection against abuse, a register would prevent an attorney attempting to rely on an enduring document that has been revoked. A register would also prevent an individual attempting to arrange a subsequent enduring document in circumstances where there is a question as to the decision-making ability of the principal.[128]

5.116  Seniors Rights Victoria submitted that

an attorney could potentially purport to rely on the original document to exercise powers that have since been revoked. In the absence of the revocation document, a certified copy of a POA document could still be purported to be evidence of a valid POA although it is a clear abuse of power.[129]

5.117  Another potential benefit of registration was highlighted by a number of stakeholders, including Legal Aid ACT, which suggested that ‘[c]ompulsory registration of powers of attorneys may assist in preventing elder abuse, as it may alert attorneys to a further level of oversight required in complying with their duties and responsibilities’.[130]

5.118  In addition, a register may have broader benefits than simply protecting an older person from abuse. The ECLC noted:

Registration would allow authorities such as hospitals, banks, lawyers and aged care facilities to verify documents that are presented to them.

A consequence of the private nature of such instruments is that upon presentation of the instrument to a third party such as a bank or aged care facility, the third party has no way of confirming that the instrument is valid and has not been subsequently revoked.[131]

5.119  Registration would assist banks and other financial institutions, organisations, companies and service providers to establish more easily the authenticity and currency of enduring documents.[132] This may protect against financial abuse and also facilitate transactions where difficulty in confirming the authenticity of an enduring document has delayed property transactions unnecessarily. As the University of Newcastle Legal Centre observed:

it would be in the interests of those being asked to rely upon the authenticity of appointing documents, if there was the ability to confirm the authenticity of the document (in particular any institution or individual being asked to release an asset on the basis of a power of attorney document, would likely be keen to gain confirmation that the document they are presented with is genuine).[133]

5.120  The financial services industry was strongly in favour of a register of enduring powers of attorney.[134] The Australian Bankers’ Association (ABA), which has long advocated for a register, submitted that

our member banks have noted an increased use of formal arrangements and the number of substitute decision making instruments being presented by third parties. This includes power of attorney appointments and appointments of financial managers by the relevant State Civil and Administrative Tribunal. The industry is concerned that the ageing population in Australia will mean that the use of formal arrangements is only likely to become more prevalent.[135]

5.121  Justice Connect Seniors Law also suggested that ‘an easily searchable register of powers of attorney may make it less likely that institutions rely on their own third party documents which in most cases have less robust witnessing requirements and protections’.[136]

5.122  A register would also assist hospitals and health care professionals to quickly identify whether a patient has appointed a substitute decision maker and then contact that person.

5.123  The ALRC accordingly recommends that guardianship and financial administration orders be added to the national online register. Currently, a guardian or administrator who moves interstate must apply to the tribunal in their new state for the order of appointment in their old state to be recognised.[137] In New South Wales, for example, only the appointed guardian or financial manager can apply for recognition of the appointment.[138] The ALRC heard of situations where a person is taken interstate by family members, ‘beyond the reach’ of a guardianship order. In this set of circumstances, the family is unlikely to register the pre-existing order, and may apply for a new order without reference to the current standing appointment. The national online register should prevent a person from making any new applications in a new jurisdiction until revocation of the prior appointment has been effected.

International perspectives

5.124  The law of England and Wales provides that enduring documents must be registered under the Mental Capacity Act 2005 (UK).[139] Scotland also introduced compulsory registration of enduring documents in the Adults with Incapacity (Scotland) Act 2000 (Scotland). In Ireland, enduring documents must be registered before they can be activated—that is, at the time of the loss of decision-making ability and not at the time they are made.[140] In each of these jurisdictions there is evidence that registration has assisted in confirming:

  • the existence of an enduring document;

  • the identity of the attorney; and

  • that it has been appropriately verified that the principal has lost decision-making ability and that the attorney therefore has authority to make decisions for the principal.[141]

5.125  In these jurisdictions, there is evidence that this has reduced the instances of enduring documents being used to facilitate fraud against older persons.[142] The English and Scottish models, that require registration once an enduring document is made, are preferable, as such an approach provides two opportunities to check the validity of the instrument: at the time of making, and at the time that powers come into force.

5.126  Evidence from the UK also suggests that awareness raising, particularly about the value of putting in place enduring documents as part of advance planning for possible loss of decision-making ability, is integral to the success of a registration scheme. In addition, keeping costs low and ensuring that forms are short and easy to complete are important in increasing people’s ability and willingness to register enduring documents.[143]

5.127  A recent comparative study examined registration schemes for enduring documents in a range of jurisdictions including the UK, Germany and Japan.[144] It concluded that

all opportunities afforded by mandatory registration to exercise greater oversight over representatives should be taken, where these do not place an excessive burden on the parties. For example, registration and activation should generate automatic notification to the principal and proximate parties, with scope for customisation or opting out by the principal at the time of initial registration.[145]

5.128  Consistent with this research, the recommended national registration scheme should be designed with a notification regime. The principal should receive confirmation of registration. The attorney/guardian should be required to notify the manager of the register before they first exercise power under the enduring document. The manager of the register would then issue an automatic notice to the principal and any other person the principal requested to be notified before the enduring document is activated. This builds on the notification regime in Victoria. Section 40 of the Powers of Attorney Act 2014 (Vic) provides:

Before an attorney under an enduring power of attorney for the first time commences to exercise power for a matter because the principal does not have decision making capacity for that matter, the attorney must take reasonable steps to give notice that the attorney is commencing to exercise the power to any person who, the enduring power of attorney states, should be so notified.

5.129  Accordingly, an online notification scheme could streamline and expedite such a notification process with little cost by generating automated notifications, for example, by SMS and/or email. The notification process would mean that if the person notified had concerns that the principal had not lost decision-making ability, they could discuss those matters with the attorney/guardian and, if still not satisfied, refer the matter to the tribunal. It should also be possible for a principal to nominate the public advocate to be notified that the attorney has activated the enduring document.

5.130  Such a notification process provides a mechanism to protect against activation in the absence of loss of decision-making ability without overly complicating the process for activating an enduring document—for example, by requiring an individual capacity assessment before an enduring document can be used. The principal retains the power to include a requirement for an assessment in the enduring document if they wish.

5.131  Building a notification scheme into the registration process would balance individual autonomy and choice with the need to ensure that there are not unnecessary burdens on attorneys/guardians.[146]

Arguments against a register

5.132  While there have been a number of reviews supporting a register of enduring documents, there have also been a number of bodies that have recommended against its establishment.[147] Similarly, in this Inquiry, the ALRC received some submissions opposing the establishment of a register of enduring documents.[148] The four key arguments against a register are that it would:

  • not be effective in reducing elder abuse (or not sufficiently effective to outweigh the burdens imposed by a register);

  • dissuade people from making enduring documents (the so-called ‘chilling effect’);

  • increase the cost of making an enduring document; and

  • raise significant privacy concerns.

5.133  In relation to cost and privacy, the ALRC acknowledges these issues. Accordingly, these issues are discussed in the section below on implementation.

5.134  In relation to the effectiveness of a register, in 2010, the Queensland Law Reform Commission decided against a compulsory registration scheme, noting that

there are likely to be limitations on the extent to which a registration system can ensure the essential validity of a registered instrument. In particular, a registration system cannot necessarily detect fraud or abuse … The Commission has therefore concluded that the burdens of a mandatory registration system would likely outweigh its benefits.[149]

5.135  Similarly, in this Inquiry, the Law Society of NSW strongly opposed a register for a number of reasons, including questions as to its efficacy in preventing financial abuse of older persons:

While a register may have the benefits envisaged in identifying persons holding powers of attorney, the Law Society of NSW is not persuaded that this, in itself, would operate in any practical or effective way to prevent, or affect, the incidence of elder abuse.[150]

5.136  The ALRC recognises that a register will not entirely prevent financial abuse by enduring attorneys, but considers that more easily identifying and confirming who has power under a valid enduring document may assist in reducing abuse where there is a question as to who is the attorney or guardian.

5.137  A second argument against a register was explained by Capacity Australia as a ‘chilling effect’. Capacity Australia suggested that a register would discourage use of enduring documents leading to ‘an increase in the inappropriate misuse of elderly persons’ money’ and more court and tribunal financial management orders being made.[151]

5.138  Capacity Australia recognised that enduring documents are an important tool in protecting those with diminished decision-making ability from abuse, but expressed concern that any reduction in the use of enduring documents could put more people at risk, as a significant proportion of abuse occurs in the absence of enduring documents.

5.139  The potential issue of a ‘chilling effect’ could be addressed by ensuring that the register is easy to use and that it is a simple and quick process to register, revoke and change status on the register. It should be possible for solicitors and other suitably qualified professionals to manage the registration process on behalf of a principal and their attorney. While the ALRC envisages that the register of enduring documents would largely have an online interface for ease of access and to reduce costs, the ALRC also recognises that there will need to be a range of options to address the specific needs of particular groups. This would include face to face interactions with those managing the register, particularly for older people who do not use the internet.[152]

Key implementation issues

Nationally consistent legislation

5.140  Given that enduring documents are made under state and territory laws, there is an issue as to whether the register should be a single national register or separate state and territory registers. There was support in submissions that, if there were to be a register, it should be a single national register. The Australian Association of Social Workers stated that ‘a register would require national consistency and transferability, and should include national accessibility’.[153] This was supported by ADA Australia which submitted that a register ‘needs to be national, not state based, and searchable by services that operate remotely and after hours (such as health services)’.[154]

5.141  The NSW Legislative Council Committee noted that a mandatory national register would provide an incentive for states and territories to move towards uniformity in legislative regimes for enduring documents. The NSW Legislative Council Committee described the issues as complex and, after this ALRC Report, best considered by the Council of Australian Governments.[155]

5.142  An effective national register requires consistent state and territory legislation and a single model enduring document that can be registered. Multiple documents with different legal consequences would make a register unwieldy and complicated, undermining the benefits of the register.[156]

5.143  There was strong support in submissions for harmonising state and territory laws on enduring documents, including from welfare organisations, community legal centres, financial, banking and accountant professional organisations and peak bodies.[157] The Law Council of Australia explained that ‘[u]niformity would reduce the current complexity and overlap in the application of the law in relation to powers of attorney and enduring guardianship’.[158]

5.144  Bonython and Arnold submitted that

[u]niformity would have the benefit of providing protected people with greater certainty that their wishes and needs were being respected and met, and their families, and professionals supporting them, with greater efficiency in locating and utilising the relevant powers and information to better support vulnerable people.[159]

5.145  Submissions also highlighted that national consistency would particularly assist communities along state and territory borders and families where the representative and principal live in different jurisdictions.[160]

5.146  State and territory legislation typically has a prescribed form for enduring documents. The ALRC recommends that a single national enduring document should be developed and that this document should drive the necessary legal reforms towards national consistency.

5.147  The national enduring document should be a short, simple and easily ‘navigatable’ document that can be downloaded and edited. Appropriate guidance material should be developed to assist individuals to complete the document, understand the nature of the arrangement and the powers that are granted to the attorney. For example, interactive online tools could be developed to assist individuals to identify the key issues in designing their enduring document consistent with their wishes. The national enduring document should operate consistently with the national safeguards outlined earlier in this chapter.

5.148  Recommendation 5–3 recognises that single agreements that cover financial, medical and personal decisions have been successful in jurisdictions such as Victoria and Queensland.[161] A single agreement, while permitting the principal to appoint different individuals for different types of decisions, may reduce confusion as to what enduring documents have been signed, clarify the roles of attorneys and guardians, and reduce confusion as to who needs to be contacted with respect to a particular decision.[162]

5.149  An important benefit of adopting a single national enduring document is that it would ensure consistency across Australia in the form and content of enduring documents, including terminology and assessments of capacity or decision-making ability. This would resolve current issues with enforcement and transferability across the states and territories.[163]

5.150  There may be some resistance to the adoption of a model national enduring document on the basis that there has already been significant reform to enduring documents in a number of jurisdictions. For example, the new laws on powers of attorney in Victoria only came into force in 2015; and South Australia made significant reforms to advance care directives and substitute decision makers which replaced guardianship laws in 2013.[164] The ALRC considers that these are excellent reforms.[165] As outlined above, the ALRC supports a number of safeguards introduced by Victoria in 2015. The ALRC also understands that significant and repeated change undermines certainty and understanding—two of the key objectives the ALRC is trying to support.

5.151  Notwithstanding these concerns, the ALRC considers that the continued abuse of enduring documents necessitates reform. A national register supported by a single national enduring document will assist in building protections against elder abuse in the longer term. The ALRC also takes a national perspective and notes that there are states and territories that have not made significant changes to enduring documents in recent years. On balance, the ALRC considers that the long term reform objectives in protecting older persons from abuse outweigh the short term disruption that may arise from implementing Recommendation 5–3 in the context of an area of law that has already been recently amended.

Cost

5.152  In order for the establishment of an online register of enduring documents to be successful, the cost to the consumer of registering documents and accessing the register must be kept low. The Law Council of Australia submitted that ‘any cost associated with registering documents should not be such that people are unwilling, or indeed unable, to enter into formal arrangements’.[166]

5.153  State Trustees Victoria commented that ‘there would probably need to be community acceptance that such an agency would have to charge a fee for registration to ensure the agency [managing the register] was appropriately resourced’.[167]

5.154  In those states where a power of attorney must be registered with the land titles office if it is to be used as part of land transactions, fees are relatively high.[168] The fees in Tasmania, where registration is compulsory, are similar.[169] In most states and territories, the processes for registration require manual submission and processing of the enduring document. Lower cost models for registration should be considered.

5.155  One such model is the Personal Property Securities Register (PPSR), which was introduced in 2012. The PPSR is a national online register that replaced Commonwealth, state and territory government registers for security interests in personal property, including those for bills of sale, liens, chattel mortgages and security interests in motor vehicles, as well as the Australian Securities and Investment Commission’s (ASIC) Register of Company Charges. The PPSR is an easy to use online register and has relatively low fees, while operating on a full cost recovery basis.[170] The cost of searching the register for individuals is $3.40, the cost of registering a security interest depends on the type of interest and its duration, but can be as low as $6.80 and up to $119.00.[171] There is no charge for removing a security interest.[172]

5.156  ADA Australia suggested that enduring documents could be added to My Health Records, which currently provides for online storage of medical records and, from 2016, ‘advance care directives’. In order to encourage use of the online storage of medical records, the scheme is currently free. There may be similar public policy imperatives that support free registration of enduring documents.[173] However, for the reasons outlined below in relation to privacy, the ALRC suggests that My Health Records and enduring documents should be kept on separate registers.

5.157  In any event, the hardware and software from the My Health Records system may provide useful models for a register of online enduring documents particularly in relation to safety and privacy standards.

5.158  Cost to the consumer is an important issue and the implementation of the register should proceed on a low cost basis so as not to discourage the use of enduring documents. The costs of establishing and operating the register should be seen in the context of the potential savings the register may provide to the government and the community more broadly. For example, the register would replace state-based registration schemes that principally operate with respect to land, providing potential savings to state governments. A broader context is the cost to the community of elder financial abuse as well as the costs of tribunal processes where a person who lacks decision-making ability has not put in place an enduring document. There are also savings to businesses, such as financial institutions, that will more easily be able to confirm the validity of an enduring document sought to be relied on to effect a transaction.

Privacy

5.159  The uploading of enduring documents onto a register raises privacy concerns. Currently, decisions about enduring appointments and assessments of decision-making ability are not publicly recorded unless registered with the land authorities for the purposes of undertaking transactions in land. The Australian Information and Privacy Commissioner urged that

[e]nsuring that access to the register is restricted, tightly controlled and monitored will be fundamental to protecting privacy rights. In particular, providing authorised people with access that is limited only to the information which they need to know, will help ensure that personal information is protected from misuse and only used for the purposes for which it was collected. Applying this in practice will mean, for example, implementing access controls so that different users can only access the specific information that is necessary for them to perform their role or functions and cannot simply browse the register without restriction. Another privacy enhancing feature may be, for example, an audit trail functionality that allows access to the register to be logged and tracked so that there is additional oversight around who has accessed the information.[174]

5.160  Bonython and Arnold suggested that ‘[a]ll access should be via appropriate information security safeguards, such as passwords and encryption consistent with best practice in Australian privacy law and international useability standards’.[175]

5.161  This view was supported by the Law Council of Australia, Justice Connect Seniors Law and the Office of the Public Advocate (Vic), with each suggesting that the VLRC’s proposed privacy controls in their Report on Guardianship be adopted:

A tiered approach was recommended in the VLRC’s Guardianship Final Report. The report noted that ‘people should be given access to the amount of information they need to know in order for them to conduct their dealings with a person with impaired decision-making ability’. Furthermore, the VLRC recommended that an electronic record be generated whenever a user accesses a record, and that it be an offence to access a part of the register without a legitimate interest. Seniors Law endorses the recommendations made in the Final Report, that only authorised people and organisations should have access to the register and to only those parts of the register they are permitted to view at any one time.[176]

5.162  The ALRC strongly supports this approach. A licensing arrangement should be put into place for those organisations and professionals that will need regular access to the register and can demonstrate the need for such access. Such organisations and professionals may include: Aged Care Assessment Services (ACAS); the Royal District Nursing Service; police; ambulance service; banks and other financial institutions; State Trustees; hospitals; Medicare; Centrelink; insurance companies; aged care facilities; medical practitioners; and legal practitioners. Information technology systems for the national register should ensure that the amount of personal information provided to a person accessing the register is no more than is necessary to enable that person to support the attorney fulfilling their role. In addition, the principal should be able to decide which individuals may access the register with respect to their enduring document (eg specified family members).

5.163  The Office of the Public Advocate (Vic) noted that the ‘VLRC also recommended that an offence be created for accessing parts of the register that the user did not have a “legitimate interest in viewing”’.[177] Similarly, the ALRC notes that there are offence and civil penalty provisions that govern unauthorised and illegitimate access to an individual’s online ‘My Health Record’.[178] These offence and civil penalty provisions provide a useful template for the national online register.

5.164  A number of stakeholders suggested that, for simplicity and to reduce costs, enduring documents should be registered on My Health Record.[179] The Australian Information and Privacy Commissioner, however, suggested keeping the register of enduring documents separate from advance care directives:

The My Health Record system is an online summary of an individual’s key health information which can be accessed digitally by individuals and by healthcare providers, within the specific and tightly-regulated parameters of the My Health Records Act 2012. On the other hand, enduring documents are not solely related to an individual’s health or medical treatment and are used by a wider group than healthcare providers, such as banks and financial institutions. Considering the sensitivity of the health information within the My Health Record system and its specific purpose in facilitating healthcare, it would not be appropriate to expand the system’s scope and purpose.[180]

5.165  The ALRC agrees with the Australian Information and Privacy Commissioner and considers that enduring documents should be kept separate from medical records and advance care directives, as enduring documents will be available to a broader range of organisations, including banks and financial institutions.

5.166  The ALRC considers that protecting individual privacy is an important design principle for the national online register of enduring documents. Appropriate access controls can be established to ensure that individuals’ personal information stored on the register is necessarily and appropriately protected. The register should be designed and operated in a manner that is consistent with the Australian Privacy Principles and the Privacy Act 1988 (Cth).

Revocation

5.167  The ALRC proposed in the Discussion Paper that the making and registering of a new enduring document would automatically revoke an existing enduring document of the same type.[181] This was designed to avoid the identified problem of multiple enduring documents being presented for the same individual with uncertainty as to which document was current. This approach was supported by a number of stakeholders, including Consumer Credit Legal Service WA:

With an effective system of registration rendering all previous instruments invalid once a current EPA [enduring power of attorney] is registered, there will be a decreased risk of such instruments being misused. It will also ensure that the substitute decision-maker always has the donor’s authority to act on their behalf and will give more control to donors to protect themselves against any abuse of trust.[182]

5.168  In the context of revocation, there were also a number of important issues raised by legal academics who sought clarification as to the legal effect of registration. The ALRC does not envisage a Torrens style system of registration—the registration system used for land whereby registration is conclusive proof of valid title.[183] An enduring document is a powerful document, but its registration should not be treated in the same way as the registration of title in land. This issue was addressed in practical terms by Advocare, who argued that ‘[t]here should be scope for allowing a previously registered enduring document to be resurrected if it is found that the most recent registered enduring document was invalid (ie by reason of donor’s incapacity as at execution)’.[184]

5.169  The validity of any enduring document duly registered should be challengeable before state and territory tribunals. The tribunals should have authority to rescind any registration, restore any previously registered document, and cure any defect in an enduring document that would prevent registration. These powers would be ancillary to the tribunals’ power to appoint financial administrators and guardians.

5.170  Notwithstanding the exercise of any of these powers by a tribunal, any person who has relied on the register should not be liable if a document is subsequently found to be invalid. This would sit alongside the ALRC’s recommendation for redress in Recommendation 5–2.

Random checks

5.171  As set out in Chapter 14, in each state or territory there is generally a body whose role is to promote and protect the rights and interests of people with disabilities, known as either the public guardian or the public advocate. In the Discussion Paper, the ALRC sought the view of stakeholders as to whether the public advocate’s/guardian’s powers should be extended to include a power to conduct random checks of enduring attorneys’ management of principals’ financial affairs.[185]

5.172  The ALRC noted that one of the advantages of a register of enduring documents is that it would provide information as to the existence of all enduring documents made, as well as those that are active. The creation of a national register has the potential to enable greater oversight of the use of enduring documents, which may safeguard against abuse. Random checking by the public advocate/guardian of an attorney’s financial management of their principal’s affairs has potential to be a deterrent against abuse and may also identify financial anomalies earlier, reducing the losses suffered by a principal.

5.173  Stakeholders had mixed views as to whether random checking was necessary and appropriate. Many stakeholders supported the idea. For example, the Women’s Domestic Violence Court Advocacy Services NSW said that,

[g]iven the great opportunity for abuse, mechanisms must be put in place to ensure this power is not abused and the older person is protected from potential abuse. Public guardians and advocates conducting random audits of enduring attorney’s financial management of an older person’s financial affairs could be one such mechanism.[186]

5.174  The Victorian Multicultural Commission also supported the idea of random checks:

This would have the effect of increasing the transparency of such arrangements, and increasing accountability and commitment in the best interests of a principal. It would also promote public confidence in the process and reduce the potential for financial disadvantage accruing to principal due to mismanagement or misunderstanding by enduring attorneys. Further, it provides an incentive for enduring attorneys to ensure they are always acting in the best interests of the principal.[187]

5.175  However, Dixon Advisory suggested that any additional random checks into the affairs of an enduring attorney ‘may not add substantial value, but rather create unnecessary stress on individuals involved’.[188] Bonython and Arnold submitted that, ‘[i]n the context of a private or domestic financial manager, such as a spouse or child, this represents an enormous administrative burden which would dissuade many from undertaking the duty’.[189]

5.176  The Law Council of Australia supported random audits ‘in principle’, when based on the existence of reasonable grounds for suspicion:

The Law Council supports this function being conferred on the public advocate/guardian, as it may serve as a deterrent against financial abuse. Such audits should be applied on a case-by-case basis and sufficiently rigorous to satisfy the public advocate and/or guardian that no misconduct has occurred without being overly burdensome or intrusive on the appointed decision-maker. Natural justice would require reasonable notice to be provided to the appointed decision maker to provide time to prepare for, and respond to, an audit. Where a random audit reveals a discrepancy in the accounts, the attorney should be given the opportunity to explain the discrepancy. Where the explanation reveals the act or omission was an honest or reasonable oversight by the attorney, the attorney should be given time to rectify any potential breach of their duties caused by the act or omission.[190]

5.177  The ALRC supports the procedural safeguards suggested by the Law Council of Australia and suggests that any scheme for random checking of an attorney’s financial management of their principal’s funds should adopt those safeguards. The ALRC considers that a scheme for random checking of an attorney’s financial management of their principal’s funds has merit and would reduce the incidence of financial abuse. The ALRC suggests that such a scheme be considered in the future, once the register has been established and its effectiveness evaluated.

[108]         National Ageing Research Institute and Seniors Rights Victoria, above n 1, 5; Kaspiew, Carson and Rhoades, above n 1. See also Seniors Rights Victoria, Submission 171.

[109]         Trevor Ryan, Bruce Baer Arnold and Wendy Bonython, ‘Protecting the Rights of Those with Dementia Through Mandatory Registration of Enduring Powers: A Comparative Analysis’ (2015) 36 Adelaide Law Review 355. This study considered registration schemes in England and Wales, Scotland, Germany, Japan, Tasmania and the proposed scheme in Victoria.

[110]         Costs associated with the register are discussed below.

[111]         More information on who can access the register and privacy protections is set out below.

[112]         Enduring documents are typically active, in the sense that the attorney can act on the powers granted, either on signing or subsequently when the principal loses legal capacity.

[113]         This intention is to prevent the registration of overlapping or inconsistent enduring documents and not to restrict the ability of the principal to appoint more than one attorney (to act jointly and/or severally) where this is their express intention.

[114]         Advance care directives are decisions made and recorded by a person in advance of medical treatment or intervention. Advance care directives typically provide specific information relating to a person’s wishes, values, and any treatments they do not wish to receive. For registration of advance care directives see My Health Records Act 2012 (Cth) and My Health Records Amendment (Advance Care Planning Information and Professional Representatives) Rule 2016 (Cth).

[115]         Ryan, Arnold and Bonython, above n 109, 357. Non-enduring powers of attorney are used more widely, and there is no specific link with older persons. For example, a general power of attorney may be signed when a person goes overseas for an extended holiday, in case documents need to be signed while they are away.

[116]         S Ellison et al, The Legal Needs of Older People in NSW (Law and Justice Foundation NSW, 2004) ch 9.

[117]         It could also be possible to allow general powers of attorney to be registered voluntarily.

[118]         Churches of Christ Care, Submission 254; NSW Nurses and Midwives’ Association, Submission 29.

[119]         House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Older People and the Law (2007); Law Reform Committee, Parliament of Victoria, Inquiry into Powers of Attorney: Final Report (August 2010); Victorian Law Reform Commission, Guardianship, Report No 24 (2012); Communities Disability Services and Domestic and Family Violence Prevention Committee, Parliament of Queensland, Inquiry into the Adequacy of Existing Financial Protections for Queensland’s Seniors (August 2015);  and  Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (2016).

[120]         Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (2016) 356.

[121]         Evidence to Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, 18 March 2016, 16, (Ms Breusch, University of Newcastle Legal Centre).

[122]         Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) rec 4–10.

[123]         See, eg, SMSF Association, Submission 382; Victorian Multicultural Commission, Submission 364; COTA, Submission 354; Dixon Advisory, Submission 342; AnglicareSA, Submission 299; Assets, Ageing and Intergenerational Transfers Research Program, the University of Queensland, Submission 243; Advocare, Submission 213; Justice Connect, Submission 182; Financial Services Institute of Australasia, Submission 137; Office of the Public Advocate (Vic), Submission 95; TASC National, Submission 91; Australian Bankers’ Association, Submission 84; Alzheimer’s Australia, Submission 80; Social Work Department Gold Coast Hospital and Health Service, Queensland Health, Submission 30; Social Work Department Redland Hospital Queensland Health, Submission 10.

[124]         See, eg, Hume Riverina CLS, Submission 186; Eastern Community Legal Centre, Submission 177; Seniors Rights Victoria, Submission 171; Seniors Rights Service, Submission 169; Mid North Coast Community Legal Centre, Submission 161; University of Newcastle Legal Centre, Submission 44.

[125]         Ellison et al, above n 116, 310–311.

[126]         Eastern Community Legal Centre, Submission 177.

[127]         Ryan, Arnold and Bonython, above n 109, 358.

[128]         Advocare Inc (WA), Submission 86.

[129]         Seniors Rights Victoria, Submission 171.

[130]         Legal Aid ACT, Submission 58.

[131]         Eastern Community Legal Centre, Submission 177.

[132]         Australian Bankers’ Association, Submission 84. See also FINSIA, Submission 339.

[133]         University of Newcastle Legal Centre, Submission 44.

[134]         Association of Financial Advisers, Submission 175; Financial Services Institute of Australasia, Submission 137; Financial Services Council, Submission 35.

[135]         Australian Bankers’ Association, Submission 107.

[136]         Justice Connect Seniors Law, Submission 362.

[137]         See, eg, Guardianship and Administration Act 1990 (WA) ss 44A, 83D. However, South Australia has a process for automatic mutual recognition of interstate orders which does not require an application to a tribunal: Guardianship and Administration Act 1993 (SA) s 34.

[138]         Guardianship Act 1987 (NSW) ss 48A, 48B.

[139]         Mental Capacity Act 2005 (UK) c 9.

[140]         Assisted Decision-Making (Capacity) Act 2015 (Ireland), s 72.

[141]         Ministry of Justice (UK), Memorandum to the Justice Select Committee: Post-Legislative Assessment of the Mental Capacity Act 2005 (2010) 11. However, the House of Lords Select Committee noted significant problems with the implementation of the Mental Capacity Act 2005 (UK), particularly the extent to which the community was aware of lasting (enduring) powers of attorneys—see House of Lords Select Committee on the Mental Capacity Act 2005, Parliament of the United Kingdom, Mental Capacity Act 2005:  Post-Legislative Scrutiny (2014).

[142]         See, eg, Rajdeep Routh, Catriona Mcneill and Graham A Jackson, ‘Use of Power of Attorney in Scotland’ (2016) 61(3) Scottish Medical Journal 119, 123.

[143]         House of Lords Select Committee on the Mental Capacity Act 2005, Parliament of the United Kingdom, above n 141, 70–71.

[144]         Trevor Ryan, Bruce Baer Arnold, and Wendy Bonython, ‘Protecting the Rights of Those with Dementia Through Mandatory Registration of Enduring Powers? A Comparative Analysis’ (2015) 36(2) Adelaide Law Review 355.

[145]         T Ryan, Submission 276.

[146]         A notification scheme had support in submissions. See, eg, Ibid; ACT Greens, Submission 267; Public Trustee of Queensland, Submission 249.

[147]         See, eg, Advance Directives Review Committee (SA), Planning Ahead: Your Health, Your Money, Your Life. Second Report of the Review of South Australia’s Advance Directives (2008); Land and Property Management Authority (NSW), Review of The Powers of Attorney Act 2003 (October 2009); Queensland Law Reform Commission, A Review of Queensland’s Guardianship Laws, Report No 67 (2010).

[148]         See, eg, Office of the Public Advocate (Qld), Submission 361; Legal Aid NSW, Submission 352; Carroll & O’Dea, Submission 335; Seniors Legal and Support Service Hervey Bay, Submission 310; Hamilton Blackstone Lawyers, Submission 270; Costantino & Co, Submission 225.

[149]         Queensland Law Reform Commission, A Review of Queensland’s Guardianship Laws, Report No 67 (2010) [103].

[150]         See Law Council of Australia, Submission 61.

[151]         Capacity Australia, Submission 134.

[152]         For many older Australians, particularly from CALD backgrounds, online only systems can be challenging: see, eg, Jo Wainer et al, ‘Diversity and Financial Elder Abuse in Victoria’ (Protecting Elders’ Assets Study, Monash University, 2011). Accordingly, the implementation of an online register of enduring documents will need alternative pathways for those who are unable to access the internet.

[153]         Australian Association of Social Workers, Submission 153.

[154]         ADA Australia, Submission 150.

[155]         Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (2016) 101.

[156]         Given that achieving national consistency may take time, states and territories may consider establishing state-based registers in the meantime.

[157]         See, eg, Hume Riverina CLS, Submission 186; Seniors Rights Service, Submission 169; Australian Bankers’ Association, Submission 107.

[158]         Law Council of Australia, Submission 61.

[159]         W Bonython and B Arnold, Submission 241.

[160]         Hume Riverina CLS, Submission 186.

[161]         Powers of Attorney Act 1998 (Qld); Powers of Attorney Act 2014 (Vic). But see also Medical Treatment Act 1988 (Vic).

[162]         Alzheimer’s Australia, Decision Making in Advance: Reducing Barriers and Improving Access to Advance Directives for People with Dementia (2006) 16.

[163]         House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Older People and the Law (2007) 70.

[164]         Advance Care Directives Act 2013 (SA); Powers of Attorney Act 2014 (Vic).

[165]         The Advance Care Directive Act 2013 (SA) is subject to a five year review in 2019: see SA Health, Advance Care Directives Policy Directive (2014).

[166]         Law Council of Australia, Submission 351.

[167]         State Trustees Victoria, Submission 138. See also Law Council of Australia, Submission 61.

[168]         For example, the cost to register in NSW is $136.30. See Land and Property Information (NSW), LPI Circular — Land and Property Information Fee Changes from 1 July 2016 (June 2016).

[169]         The cost to register in Tasmania is $138.46. See Land Tasmania, Brief Fee Schedule 2016 (1 July 2016).

[170]         See Australian Financial Security Authority, Personal Property Securities Register <https://www
.ppsr.gov.au/>.

[171]         Australian Financial Security Authority, Fees for Using the PPSR <www.ppsr.gov.au/fees>.

[172]         Ibid.

[173]         ADA Australia, Submission 150.

[174]         Australian Information and Privacy Commissioner, Submission 233.

[175]         W Bonython and B Arnold, Submission 241.

[176]         Justice Connect Seniors Law, Submission 362 (citations omitted). See also Law Council of Australia, Submission 351; Office of the Public Advocate (Vic), Submission 246.

[177]         Office of the Public Advocate (Vic), Submission 246.

[178]         My Health Records Act 2012 (Cth) part 4 div 1, part 5, part 6.

[179]         See, eg, University of Newcastle Legal Centre, Submission 264.

[180]         Australian Information and Privacy Commissioner, Submission 233.

[181]         Australian Law Reform Commission, Elder Abuse, Discussion Paper No 83 (2016) prop 5–2.

[182]         Consumer Credit Legal Service (WA) Inc, Submission 301.

[183]         Australian Research Network on Law and Ageing, Submission 262.

[184]         Advocare, Submission 213.

[185]         Australian Law Reform Commission, Elder Abuse, Discussion Paper No 83 (2016) question  5–2.

[186]         Women’s Domestic Violence Court Advocacy Services NSW Inc, Submission 293.

[187]         Victorian Multicultural Commission, Submission 364.

[188]         Dixon Advisory, Submission 342.

[189]         W Bonython and B Arnold, Submission 241.

[190]         Law Council of Australia, Submission 351.