Achieving Greater Consistency in Laws for Financial Enduring Powers of Attorney
13 December 2023
The Law Council made a submission on 13 December 2023 to the Attorney General’s Department in response to its Achieving Greater Consistency in Laws for Financial Enduring Powers of Attorney Consultation Paper (the Consultation Paper).
The Standing Council of Attorney Generals (SCAG) approved the Consultation Paper, which extends the commitment made in the National Plan for governments to consider options for achieving greater national consistency in financial Enduring Power of Attorney (EPOA) laws.
Throughout the submission, the Law Council had reference to its own model EPOA provisions. It made recommendations that reflect the varied perspectives and approaches of its national committees and Constituent Bodies, as well as the Law Council’s leadership role in advocating for the betterment of the law in the public interest.
The Law Council made the following key recommendations:
- To meaningfully mitigate the risk of financial elder abuse, the Law Council’s witnessing model provisions should be adopted as the only approach in all jurisdictions – it is critical that witnesses be required to explain the effect of the EPOA to the principal, as well as the obligations and duties to the attorney, prior to execution.
- Individuals who have the training, ethics, professional standards, and indemnity insurance to provide appropriate advice and the ability to withstand any undue influence should be designated as prescribed witnesses.
- Consideration should be given to uniform provisions to enable best practice remote witnessing of EPOAs, while mitigating identified risks.
- On the condition that specific requirements are met, the Law Council generally supports the inclusion of the ‘care-givers’ and the ‘five-year ineligibility period’ limbs of the eligibility provision of the Consultation Paper.
- The Law Council in-principle supports the inclusion of a ‘disclose and approve’ provision and the mandatory obligation on an attorney to report an event that would render them to be ineligible to be an attorney, on the basis that its preferred models for authorised witnessing and revocation are also instituted.
- The Law Council supports a move towards a model of supported decision making in EPOA laws as part of a coordinated national approach across a range of Commonwealth, state, and territory laws. A concerted program of funding, education and transitional laws will be required to successfully achieve this reform.
- When establishing EPOA laws, SCAG should consider how to improve access to and use of EPOAs in First Nation communities.
The Law Council of Australia is grateful to its National Elder Law and Succession Law Committee, its National Human Rights Committee, its Indigenous Legal Issues Committee and Constituent Bodies for the input that they each provided to this submission.
Last Updated on 11/04/2024