20 August 2020

Powers of Attorney

The South Australian Law Reform Institute June 2020 discussion paper regarding the Institute's Review of the Role and Operation of Powers of Attorney in South Australia features the following consultation questions 

 History and Use of Powers of Attorney 
1. How widely are EPAs used? 
2. How can the use of EPAs be promoted? 
3. What are the barriers to making EPAs? 
4. How does the POA Act compare to other Powers of Attorneys laws in Australia? What are its benefits/disadvantages? 
5. Should guiding principles be introduced in the POA Act? 
6. How can the POA Act be simplified? 
7. What are the issues with EPA forms? 
8. Should it be mandatory to use the standard EPA forms? 
9. Are the formal requirements for creating EPAs suitable? 
10. How many witnesses should be required to witness an EPA document? 
11. Should witnesses have to explicitly attest to the principal’s capacity? 
12. What qualifications (if any) should a witness hold? 
13. Who should be disqualified from being a witness? 
14. How can witnesses be supported in their role? 
Legislative Framework 
1. How should capacity be defined? 
2. Should the test in the 1870 case of Banks v Goodfellow continue to be the relevant test for assessing capacity? 
3. Who should be making the capacity assessment for the creation and activation of an EPA? 
4. How can the principal’s rights be protected when assessing capacity? 
5. Should there be principles to guide capacity assessment? 
6. What evidence should be required to create or activate an enduring Power of Attorney? 
7. Is there sufficient guidance and support for those making the assessment? 
Duties of Attorneys 
1. Who is an appropriate attorney? 
2. How many attorneys should a principal be able to appoint? 
3. What are the issues arising with multiple and alternative attorneys? 
4. What are the powers and duties of attorneys and are they understood by the public? 
5. How can attorneys’ understanding of their role, powers and duties be increased? 
6. Should there be requisite competencies that an attorney should demonstrate prior to appointment?  
7. Should it be mandatory to appoint two attorneys—one of whom is a professional (allied health)? 
8. Should any of the following become statutory limitations of an attorney’s power?
a) the principal and/or another nominated individual, receive copies of account statements on a regular basis; 
b) prior to certain transactions, such as sale of property, the attorney consult with nominated persons; 
c) that the principal’s finances be audited annually, with a report sent to nominated persons; 
d) that the principal undertake a capacity assessment, once deemed legally incapacitated; or 
e) other? 
Legal Remedies for the Abuse of an Enduring Power of Attorney / Practical Measures 
1. What is the level of abuse of EPAs? 
2. How are EPAs abused? 
3. Who are the victims? 
4. Who are the perpetrators? 
5. How can abuses of EPAs be better detected, reported and investigated? a. Should a referral system as outlined in the ACD Act be applied in the context of EPAs? 
6. What mechanisms can be implemented to provide oversight of an attorney's conduct, to identify and address abuse? 
7. What measures should be implemented to prevent abuses? 
8. How can data collection processes be improved to obtain accurate figures oabuse? 
9. What measures can be adopted to better protect vulnerable populations, specifically CALD individuals and Indigenous and Torres Strait Islander individuals? 
10. Are the current legal remedies adequate? 
11. How might the existing legal remedies be improved/reformed in order to prevent abuse? 
12. Are the practical remedies being used? 
13. How useful are the practical remedies in preventing abuse? 
14. Should any of the practical remedies become a legal remedy? 
1. Should South Australia introduce a compulsory register of EPAs? 
2. Should registration be national or state-based? 
3. What are the benefits and risks of introducing a register? 
4. Should registration be compulsory upon initial creation or when the principal loses decision-making capacity? 
5. Should there be a notification scheme as in England/Wales where designated persons are notified once the attorney attempts to first exercise their powers? 
6. What information should be included in the register? 
7. Who should have access to the register? 
8. Where should the register be located? 
9. Will the costs of registration deter principals from creating EPAs? 
10. Should registration be online and/ or in person? 
11. Should the registration body take on the role of ensuring EPAs are correctly executed? 
12. Will the register help to detect fraud?