WARNING RE ABUSE OF EPA
Abuse of Enduring Power of Attorneys: A number of recent matters that have come to the attention of our Office, prompts this warning about the risks of financial abuse of older people, and the potential abuse of enduring powers of attorney.
Enduring Powers of Attorney are excellent tools to plan ahead and all adults should consider having one. In making an EPA people should also be aware of potential risks. A few simple precautions in setting up EPAs can help stop fraud in the future. The benefits of having a carefully prepared EPA outweigh the risks.
The EPA enables a person to appoint another person (or persons) to act on his or her behalf to make decisions about financial, property or legal matters should there come a time when the person is unable to do so themselves due to legal incapacity.
However the EPA can also be a tool of financial abuse and it is often older people who are the victim.
People who are appointed by an EPA must know that they have an absolute and unconditional duty to act in the best interest of the person who appointed them. If an appointed person acts improperly, he or she can be held personally and criminally liable.
When we make an Enduring Power of Attorney we can all take precautions to prevent such abuse. These include considering the following.
- The need to carefully choose the person who will act as your Attorney. This must be a person you can trust to act in your interests.
- Making other people you know aware of who you have appointed so they know what is happening.
- Appointing two people and require that they act jointly instead of relying on one.
- Making it a condition of your EPA that someone else (eg another family member or friend) receives copies of bank and other financial statement and regular reports from your Attorney.
- Requiring that a doctor must certify any “legal incapacity” before the EPA comes into force.
- If you still have concerns then require that your affairs are independently audited each year. There is a cost to this.
- Consider limiting the attorney’s power to deal with major assets such as selling or mortgaging your home. (This can make arranging future accommodation difficult though.)
Advice about setting up an EPA or updating an existing EPA can be obtained from your family lawyer, the Legal Services Commission, or the Public Trustee.
If there are concerns about potential financial abuse or elder abuse the Office of the Public Advocate Enquiry Service is available to call as well as the Aged Rights Advocacy Service.
For information about preparing an EPA:
Your family lawyer
Legal Services Commission of South Australia: 1300 366 424
Public Trustee (08) 8226 9200 or country toll-free on 1800 673 119
Enquiries about potential abuse:
Office of the Public Advocate: (08) 8342 8200 and 1800 066 969 (country callers.)
Aged Rights Advocacy Services: (08) 8232 5377 and 1800 700 600 (country callers)