Summary

5.1        Enduring powers of attorney and enduring guardianship (together referred to as ‘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 (or who has impaired) 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]

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

  • adopting nationally consistent safeguards that seek to minimise the risk of abuse of an enduring document;
  • giving tribunals jurisdiction to award compensation when duties under an enduring document have been breached; and
  • establishing a national online registration scheme for enduring documents.

5.4        These recommendations strengthen the important role that enduring appointments have for older people seeking to protect against a loss of decision-making ability in the future, by reducing the potential for those appointments to be misused. This chapter is focused on enduring powers and does not apply to non-enduring powers of attorney.

[1]             National Ageing Research Institute and Seniors Rights Victoria, Profile of Elder Abuse in Victoria. Analysis of Data about People Seeking Help from Seniors Rights Victoria (2015) 5; Rae Kaspiew, Rachel Carson and Helen Rhoades, ‘Elder Abuse: Understanding Issues, Frameworks and Responses’ (Research Report 35, Australian Institute of Family Studies, 2016) 11.