Achieving greater consistency in laws for financial enduring powers of attorney

Overview

All Australian Governments are committed to promoting the dignity, security and autonomy of older Australians. This includes preventing the abuse of older people in all its forms – physical, financial, psychological and sexual abuse, and neglect – and taking positive steps to promote the rights of older persons.

This consultation process focuses on addressing financial elder abuse and achieving greater consistency in laws for financial enduring powers of attorney (EPOAs).

Financial elder abuse is the improper use, or deliberate exploitation, of an older person’s money, property or other resources. It can consist of a single event, or several actions that take place over a period of time, and can occur alongside other forms of abuse and neglect.

EPOAs are legal documents made under state and territory law. They allow a person (the principal) to appoint another adult person or persons (the attorney) to make certain decisions on their behalf. EPOAs, unlike general powers of attorney, continue in force should the principal lose decision-making capacity in the future.

While EPOAs are intended to protect and assist principals, they can instead contribute to financial abuse when they are misused or misapplied by an attorney, whether deliberately or inadvertently.

Benefits of greater consistency in EPOA laws

A number of inquiries have highlighted the benefits of achieving greater consistency in EPOA laws in Australia, and the challenges and inefficiencies presented by current differences in state and territory legislation. The expected key benefits of achieving greater national consistency include:

• a reduction in financial elder abuse
• greater consistency in the practices of institutions relying on enduring powers of attorney
• enabling national education, resources and greater alignment of services
• greater consistency in the oversight of enduring powers of attorney and the implementation of safeguards to prevent their misuse.

Why we are consulting

On 22 September 2023, the Standing Council of Attorneys-General agreed to release the following Consultation Paper, which provides potential reform proposals across a range of key areas in financial EPOA laws.

Detailed proposals are presented about:

• the execution of an EPOA
• witnessing arrangements
• acceptance of appointment by an attorney
• revocation and automatic revocation
• attorney eligibility, attorney duties
• access to justice issues (jurisdiction, compensation and offences).

The paper also seeks feedback on potential improvements to arrangements for recognising EPOAs interstate and training for witnesses and attorneys, as well as feedback on non-legislative initiatives to address financial elder abuse.

We are keen to hear from a wide range of people and groups who have experience with financial EPOAs, or in responding to financial elder abuse. This includes victims and survivors themselves. Sharing your experiences will assist us to develop this work further, and to provide advice to Attorneys-General on the most important next steps and policy considerations in EPOA law reform.

You may have already shared your views on these issues through other recent consultations or inquiries. You are welcome to highlight or refer to matters addressed in past published submissions, where this is indicative of your current views on an issue.

How to share your views

Read the Consultation Paper and tell us what you think by completing our survey.

You do not need to answer every question. You are welcome to only respond to those questions that are relevant to you or your organisation. Consultation closes on 29 November 2023.

You can submit your response under your name or anonymously. We will publish responses at the end of the consultation period. We will not publish submissions if you do not consent, or if there is any potential legal or other issues with publishing the submission. Submissions may be subject to freedom of information requests, or requests from the Parliament. Personal information shared through the consultation process will be treated in accordance with the Privacy Act 1988. For more information on how we collect, store and use personal information, please read our Privacy Policy.

Consultation Paper

The Consultation Paper contains 8 areas for proposed law reform, as well as policy context and detailed explanations of each law reform proposal.

• Consultation Paper [PDF 4.7 MB]
• Consultation Paper – Plain Language Summary version [PDF 387 KB]
• Consultation Paper – Plain Language Summary version [DOCX 100 KB]

The Plain Language Summary document has reduced sentence length and complexity, and uses everyday words where possible, to help everyone understand the Consultation Paper. 

Safety information

This consultation is about the financial abuse of older Australians, and includes discussions of family and domestic violence, and coercive control. If you think someone may be checking the websites you visit or using technology in other ways to monitor you, you may wish to find out how you can browse more safely before you continue.

Support services

Reading about and discussing family and domestic violence, including financial elder abuse, may be distressing to some people. Your safety and wellbeing are paramount. If you or someone you know needs help, contact one of the below services:

If anyone is in immediate danger call TripleZero (000).

1800 ELDERHelp (1800 353 374) is a free call phone number that automatically redirects callers seeking information and advice on elder abuse with the phone service in their state or territory. The phone line has been setup in collaboration with state and territory governments.

1800RESPECT is the national domestic, family and sexual violence counselling, information and support service. If you or someone you know is experiencing, or at risk of experiencing, domestic, family or sexual violence, call 1800RESPECT on 1800 737 732 (available 24/7) or visit 1800respect.org.au.

Lifeline is a crisis support service for people who are feeling overwhelmed or having difficulty coping. You can call Lifeline on 13 11 14 (available 24/7).