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Misuse of enduring power of attorney

Enduring Powers of Attorney are sometimes misused, and if this happened your rights and control could be at risk. Find out how you can better protect yourself.

Last updated: 9 September 2022

Elder abuse is, unfortunately, very common in Australia, with one study of people aged 65 and over finding that 1 in 6 had experienced elder abuse in the preceding year. The Australian Institute of Family Studies (AIFS) also reported in December 2021 that psychological abuse, neglect and financial abuse were the most common forms of elder abuse.

None of us wants to experience elder abuse, and having an enduring power of attorney (EPOA) can help prevent it. Recording your wishes and preferences in an EPOA is a great way to protect your independence and control in case you lose decision-making capacity. However, EPOAs are sometimes misused, and if this happened your rights and control could be at risk.

What would cause an EPOA to be less than foolproof? To make the most of an EPOA’s potential for our security, we need to understand when it could be flawed:

  • A lack of understanding and awareness of the options when making an EPOA can leave an older person vulnerable to exploitation and elder abuse.

  • An appointed attorney may, intentionally or unintentionally, use their appointment to control or take advantage of the older person.

  • Professional teams involved with older people may misunderstand how EPOAs are meant to work and, in doing so, leave room for them to be misused.

In reality, an EPOA is only as protective as you make it. And the good news is that there are many steps you can take when making your EPOA to safeguard your future and minimise the likelihood of you being exploited or abused.

First, let’s look at how EPOAs could be misused.

Older woman wearing glasses on the phone and reading a document.

Intentional or unintentional misuse

Misuse of an EPOA can be inadvertent, but it can also be intentional. The difference is whether the perpetrator acts without awareness and understanding or deliberately and maliciously.

For an attorney, one challenge is the potential for unintentionally misusing the appointment. This can happen if they forget or misunderstand the obligations of the role or aren’t diligent in the actions they take. And if the EPOA that guides them is not detailed or comprehensive, there’s even more room for error.

However, sometimes an attorney’s misuse of their appointment is deliberate. They may actively choose to exploit their access to the older person’s finances and assets, or to establish control over their daily lives. And if there’s little scrutiny of the attorney’s actions, or if other people involved with the older person don’t understand EPOAs, the misuse may continue unhindered.

Even the process for determining an older person’s decision-making capacity could be misused.

One of the triggers for an EPOA to become active is when the person who made it is considered to have lost capacity and is no longer able to make their own decisions. Sometimes an attorney, family member or other person may try to influence this determination so that the EPOA becomes active early, giving them an opportunity to exploit the older person through it.

Attorneys need to remember that their role is not to make decisions for the older person, but with them, in a supported decision-making role (more on this later). Your attorney is expected to do what you would want based on your values and preferences, rather than what they personally value or believe is best.

Your decisions are yours, and an attorney may not agree with your wishes or preferences. But the expectation is that they will first try to action your decisions the way you want and, whenever possible, help you make them.

Examples of unintentional misuse of an EPOA

  • Making decisions the attorney is not authorised—either by the EPOA or by the law of its state or territory—to make

  • Not consulting the older person about decisions and drawing on any decision-making capacity they may still have

  • Making decisions that align with their own preferences and values rather than the older person’s

  • Not following the older person’s instructions

  • Not keeping accurate records of transactions

  • Not keeping the attorney’s money separate from the older person’s (for example, not paying separately for their shopping and the older person’s when shopping for both at the same time)

  • Denying the older person their rights

  • Controlling who the older person spends time with

    Older man with a cane sitting on a sofa

Case study: Angelo wants to play cards with his friends

For many years Angelo has played cards with his friends, and they sometimes do some minor betting among themselves. Angelo now lives in aged care, and his friends visit once a month for a card game.

Staff overheard the men talking about bets and money and were concerned that Angelo was being exploited. The manager called Marina, Angelo’s daughter and attorney, to share their concerns. Marina and the manager agreed that to avoid any wrongdoing, Angelo should no longer have access to any cash.

Marina and the manager did not consult Angelo about the staff’s concerns, and Angelo is angry that they have taken away his right to his own money. His friends are upset and now don’t want to visit because they feel the manager has accused them of being abusers.

The staff should have had a private conversation with Angelo, where he could have explained that the card games are something he has always enjoyed and that, even if he gets forgetful or needs help with other things, continuing to play is very important to him. The manager did not need to contact Angelo’s attorney, and Marina, as the attorney, is meant to speak to Angelo before making any decision about his access to his money.

Examples of intentional misuse of an EPOA

  • Trying to convince an older person they have lost capacity

  • Falsely claiming to be an older person’s attorney

  • Taking advantage of their access to the older person’s finances and assets to use or take money or sell assets

  • Withholding bank statements

  • Exerting control over the older person

  • Limiting the older person’s access to their own money

  • Limiting the older person’s access to friends, family members and social activities

  • Cancelling or interfering with aged care or other services

  • Not allowing the older person access to an advocate

    Picture of an older man folding his hands and looking out to the left.

Case study: John’s involvement in his own finances

After being in hospital in 2021, John was moved into residential aged care under the authority of his children, Kirra and Anthony, who are both his attorneys. John’s children have kept his wallet and paperwork and have always refused to speak to him about his finances. John has not been happy in the aged care facility and regularly asks to return to his own home. Because of this conflict, his children have stopped visiting and speaking with him.

Initially, Kirra and Anthony had dealt with the facility manager and handled the paying of John’s fees. However, for the last few months the manager has not been able to contact either of them, and John’s fees have not been paid for 4 months. The manager thought that because John had attorneys, he did not need to consult him about the situation, so John did not know that his fees were overdue until now.

John has a friend who takes him to the bank to find out what’s happening. There he discovers that his bank account is empty and that his pension has been going to an unknown account for some time.

John’s attorneys do not have the right to keep his personal items or to change the arrangements for his pension payments. The manager should have been providing John with copies of his residential accounts and talking with him about his property and finances whenever he asked.

John could now be helped to access an advocate so he can learn about his rights and options.

Professionals can play a part in misuse of an EPOA

Professional care and service teams involved with older people may enable misuse of an EPOA simply by not understanding or respecting how it is meant to work.

An attorney’s role is about respecting the older person’s wishes and views and acting as they would do, not just about liaising with care providers and paying fees on time. So, in providing care and services, professionals could take note of how the attorney gets and treats the requests, views or preferences of the older person.

In some reports of elder abuse, people have told a service provider that they are an older person’s attorney when that person either has never made an EPOA or nominated someone else as their attorney. If the professional team follows any instructions given by the false attorney, they may enable elder abuse through misuse of the EPOA.

Providers can always ask to see a certified copy of the EPOA before following any instructions, as this is the only way to verify an attorney’s appointment and confirm whether any other attorneys were appointed.

The EPOA will also tell the provider any instructions the older person may have recorded about their decision-making preferences and any limits or conditions they may have placed on their attorney’s actions.

An older woman on a laptop

Case study: Miriam wants contact with her daughter

Miriam is living in aged care, and her son Ismael is her attorney. Ismael does not like his sister Jacinta. He has told the aged care facility manager that Jacinta is not allowed to see Miriam and that if she tries to call her, they are to let him know.

Miriam has a close relationship with both her children and does not want to be caught in the middle of their lifelong squabbling. She has asked to see an advocate so she can work out what her rights and options are.

The facility manager has said that Ismael must approve an advocate visiting Miriam. Miriam is very distressed about this. However, the facility manager is incorrect in following Ismael instructions.

Legally, Ismael does not have any authority as Miriam’s attorney to stop her from spending time with her daughter or anyone else she would like to see. Miriam could decide to contact an advocate to help her understand her rights and the limits of Ismael’s appointment.

How to mitigate EPOA misuse

An important step in minimising the likelihood of your EPOA being misused is to make one that’s strong, detailed, clear and comprehensive.

  • Follow the Compass checklist for your state or territory when you decide to make your EPOA.

  • Provide clear and detailed instructions about everything you can think of. Talking with family, friends, your solicitor, your accountant and an elder advocacy organisation before making your EPOA will help to ensure you cover everything you might want.

  • Stipulate that you want your attorney to provide supported decision-making wherever possible (see more on supported decision-making further along in this article).

  • Choose an attorney who knows you well and has been involved with you—someone who respects your values and will make decisions objectively Check out the Choosing an attorney section.

  • Appoint more than one attorney, if it’s permitted in your state or territory, and consider instructing that they make decisions together.

  • Discuss your wishes and values in detail with your chosen attorneys so that you know they will understand and respect them.

  • Record instructions for how you want various decisions to be made. These can be as specific and detailed as you like, and as many as you like. The clearer you are about what you want, the easier it will be for people to make sure it happens.

  • Include instructions for regular third-party checks, such as audits and annual reviews by your solicitor, to ensure that your attorney’s actions are diligent.

  • Stipulate that multiple independent officials are to decide whether you have lost capacity, rather than only one doctor or one family member.

  • If registering your EPOA is an option in your state or territory, take it, so that people will know where to find your EPOA if you can’t tell them. See the information for your state or territory for details.

  • Give copies of your EPOA to all your attorneys and to the key people in your life, including your solicitor, bank, accountant and care providers, so they can know what you want done and who is authorised to act for you.

Ask for supported decision-making

Supported decision-making is a practice in which someone gives another person the support they need to make a decision. It recognises that all adults have the right to make decisions about things that affect their lives, to have their decisions respected, and to have support for making their own decisions available if they need it.

In supported decision-making, no one makes assumptions about your capacity, and they respect your rights. You instruct your attorney to consult with you before enacting any decision that you need made and find out, as far as possible, what you would like to have done.

Know your rights and contact an advocate

Attorneys cannot deny an older person their rights, which are protected by various state and federal legislation.

If you are receiving government-subsidised aged care services, the Aged Care Charter of Rights also applies. Under the charter, regardless of the type of care and services you receive, you are always entitled to:

  • receive advocacy support

  • have personal privacy and have your personal information protected

  • receive information about yourself, such as your financial records and copies of your EPOA documents.

If you are confused or concerned about the actions of your attorney, talk it through with an advocate, such as an independent social worker or psychologist. The advocate should be someone you choose, not someone chosen by your attorney or aged care provider.

Your GP may be able to recommend someone. The Older Persons Advocacy Network (OPAN) can also help you with understanding advocacy services in your state or territory.

Get more information from Compass

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You can download a PDF version of Misuse of enduring power of attorney here.

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