Overview Questions
Do you support Attorneys-General working towards achieving greater consistency in financial EPOA laws, as an elder abuse prevention measure?
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Yes, strongly support
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Yes, somewhat support
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Neutral, undecided
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No, somewhat do not support
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No, strongly do not support
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My response is limited to 1 issue, for which hopefully there is an opportunity in later pages of this form.
Attorney duties
Should all types of attorneys (family members/friends, public trustees and private trustee companies) be subject to the same obligations, regardless of their relationship with and access to the principal?
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No
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Please share any related supporting information.
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I am a JP. Recently I witnessed an EPA for a Redacted text lady, whoRedacted text wanted an EPA so a close family friend can manage her financial affairs. She still has her mental faculties, but feels out of her depth in handling financial matters (which perhaps were looked after by her husband until his death).
The EPA allows the donor to stipulate that "This authority is subject to the following conditions, limitations or exclusions". She specified none, as it is clear she has full confidence in the person to whom she is giving the power of attorney to make financial decisions on her behalf.
It struck me as odd that the attorney can make decisions on behalf of the donor without any obligation to inform the donor of these decisions. JPs are not allowed to advise on the content of an EPA, so I did not say anything to her about specifying this as a condition. Instead, I would suggest that there should be a legal requirement for persons assigned an EPA to inform the donor of any significant financial decisions made on their behalf under the EPA.
The drafting of this needs to take several factors into account:
(a) it is unnecessary to require this for basic housekeeping expenses for the donor, e.g. groceries, toiletries, food, clothing, insurance, utilities, house maintenance.
(b) for large expenses (over $1,000?), the attorney should notify the donor in writing within 1 week of the expense being incurred.
(c) there may be some significant, recurring expenses (e.g. for in-home support services, or for accommodation in an aged care residence), where it would be sufficient to notify the donor the first time this expense is occurred, with this notice to include advice of the future frequency and size of this expense.
(d) written notification is important, to ensure that the message is heard and understood, and that the donor has the opportunity to revisit it if he/she wishes.
(e) if the donor is mentally incapacitated, the above provisions should not be required.
I believe that this suggestion is very much common sense, as a donor who has given an EPA should be informed of decisions made about her/his finances. This measure would also be a constraint on elder financial abuse.
[Note: "donor" is the term in the South Australian legislation = "principal" in your consultation paper]
The EPA allows the donor to stipulate that "This authority is subject to the following conditions, limitations or exclusions". She specified none, as it is clear she has full confidence in the person to whom she is giving the power of attorney to make financial decisions on her behalf.
It struck me as odd that the attorney can make decisions on behalf of the donor without any obligation to inform the donor of these decisions. JPs are not allowed to advise on the content of an EPA, so I did not say anything to her about specifying this as a condition. Instead, I would suggest that there should be a legal requirement for persons assigned an EPA to inform the donor of any significant financial decisions made on their behalf under the EPA.
The drafting of this needs to take several factors into account:
(a) it is unnecessary to require this for basic housekeeping expenses for the donor, e.g. groceries, toiletries, food, clothing, insurance, utilities, house maintenance.
(b) for large expenses (over $1,000?), the attorney should notify the donor in writing within 1 week of the expense being incurred.
(c) there may be some significant, recurring expenses (e.g. for in-home support services, or for accommodation in an aged care residence), where it would be sufficient to notify the donor the first time this expense is occurred, with this notice to include advice of the future frequency and size of this expense.
(d) written notification is important, to ensure that the message is heard and understood, and that the donor has the opportunity to revisit it if he/she wishes.
(e) if the donor is mentally incapacitated, the above provisions should not be required.
I believe that this suggestion is very much common sense, as a donor who has given an EPA should be informed of decisions made about her/his finances. This measure would also be a constraint on elder financial abuse.
[Note: "donor" is the term in the South Australian legislation = "principal" in your consultation paper]