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Back to "Wills & Estates Newsletter - February 2017"


Elder abuse and the importance of Enduring Powers of Attorney

Currently, the Australian Law Reform Commission is conducting an inquiry and report on the existing laws and frameworks which seek to safeguard and protect older persons from misuse or abuse by formal and informal carers, supporters, representatives and others.

According to the Elder Abuse Prevention Unit, the definition of “elder abuse” as adopted by the World Health Organisation and the International Network for the Prevention of Elder Abuse is “a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person”.

One form of Elder Abuse is financial abuse. An example of financial abuse is a situation where funds may have been improperly attained by a person who has abused the trust of an older person.

Often people delay to plan ahead and become frail or incapacitated without having considered their future accommodation needs or health care options and the financial consequences of those options. By this time, they cannot make decisions concerning these matters because of incapacity. This may expose the elderly person to exploitation by a person who was formerly trusted.

To prevent financial abuse, a person should make an enduring power of attorney which allows for the appointment of one or two capable trusted people as attorneys to act in financial matters either from the date it is signed, or from when the person loses capacity to make decisions themselves.  The power of attorney can impose certain conditions on the attorneys, for example requiring two attorneys to act jointly to carry out large transactions or on the sale of property, or to submit annual accounting records to your accountant for audit.

Other safeguards to prevent financial abuse include, for example, storing original legal documents such as the Certificate of Title to property, a power of attorney and appointment of enduring guardian in safe custody. Carroll & O’Dea offer such a service without charge. Banks, authorities and personal advisers can work with certified copies.

Josephine Heesh, Partner

Adelaide Ryan, Solicitor

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