'Strengthening the Response to Elder Financial Abuse and the Proposed Enduring Power of Attorney Register: Suggested First Steps' by Kelly Purser, Bridget Lewis, Tina Cockburn and Sharon Christensen in (2023) 2 UNSW Law Journal Forum 1 comments
National attention has increasingly focused on elder abuse. Recently, the Royal Commission into Aged Care Quality and Safety highlighted the physical and chemical abuse occurring in aged care. Earlier, in 2017, the Australian Law Reform Commission (‘ALRC’) conducted an inquiry into elder abuse which explored national laws available to protect older persons from abuse. Elder financial abuse (‘EFA’), a common form of abuse, was a focus of the ALRC report. In this context, the ALRC made various recommendations about enduring documents (enduring powers of attorney (‘EPAs’) and enduring guardianship) given the role that these documents, especially EPAs, can play in facilitating EFA and heightening the vulnerability of adults who have lost capacity. These recommendations included the development of ‘a national online register of enduring documents, and court and tribunal appointments of guardians and financial administrators’ following the national harmonisation of EPA laws (financial, health and personal) as well as the development of a ‘national model enduring document’. However, despite the lack of national agreement, the 2019 National Plan to Respond to Elder Abuse agreed upon by the Council of Attorneys-General included achieving national consistency in EPA laws as a medium-term goal, whereas a national EPA register was noted as a short-to medium-term priority. That is, developing a national EPA register became the (unexpected) priority.
In response to this development, this article argues that progressing a mandatory online register is premature, especially before an evidence-based approach to reforming enduring documents broadly has been adequately developed and considered. Further, before specific law reform proposals are developed, there are significant ‘foundational’ challenges that require examination, particularly in relation to an EPA register. This article will contribute to the dialogue around four of these fundamental considerations. First, the role of a human rights framework, as advocated by the ALRC requires discussion, especially given the different approaches to protecting human rights throughout Australia. Secondly, an examination of capacity and the assessment of incapacity is essential to any discussion about EPAs and decision-making. Thirdly, COVID-19 fast-tracked questions about whether and if so, what, role technology could and/or should play in the valid execution of various documents, including EPAs. Finally, the importance of gathering rigorous data, including data about lived experiences, to support evidence-based reform and evaluate any such reform is vital if the goal of ‘effectively reducing’ EFA is to be attained. To better contextualise these issues, however, some background comments will first be made about the law reform context, national harmonisation of EPA laws and the proposed register.
