Achieving Greater Consistency in Laws for Financial Enduring Powers of Attorney
The Law Council is making a submission 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 identifies the Australian Law Reform Commission (ALRC) report ‘Elder Abuse—A National Legal Response’1 (Elder Abuse Report) as a ‘foundational work’ in efforts to reform enduring power of attorney (EPOA) laws. As the ALRC identified, an overriding objective of reform is to adopt ‘nationally consistent safeguards that seek to minimise the risk of abuse of an enduring document’.2
It is critical the objective of minimising the risk of elder financial abuse remains paramount as Commonwealth, state and territory Attorneys-General work to develop nationally consistent EPOA laws. The mitigation of elder financial abuse is the guiding principle that underpins the Law Council’s existing model provisions for nationally consistent EPOA laws and the recommendations in this submission.
The Law Council is aware of the extent of the challenge of devising and agreeing nationally consistent EPOA laws. As the Consultation Paper’s Appendix 1 demonstrates, there are considerable differences across current state and territory EPOA frameworks. These differences are the result of some states and territories having human rights Acts, of regional and geographical differences, and of law reform processes that have evolved locally and over time.
The Law Council represents its constituent bodies—state and territory law societies and bar associations—in matters involving the uniformity of state and territory laws.3 This submission gives effect to constituent bodies’ views, informed by the laws and practices in each jurisdiction. It is also informed by the National Law and Succession Law Committee’s (NELSC) advice. The NELSC members are experienced elder and succession law practitioners nominated from each state and territory law society. As the objective is national consistency, this submission makes recommendations that are respectful of constituent bodies different views and approaches but which reflect the Law Council’s role in advocating for the betterment of the law in the public interest.4
The key recommendation is the Law Council’s enhanced witnessing model provision should be adopted as the only approach in all jurisdictions. It is critical that before execution the witness is obliged to explain the effect of the EPOA to the principal, and the obligations and duties to the attorney. This will meaningfully mitigate the risk of financial elder abuse. Prescribed witnesses should be individuals with the training, ethics, professional standards, and the indemnity insurance to provide the appropriate advice and the ability to withstand any undue influence. To maximise access to EPOAs in remote, regional and rural (RRR) areas, Standing Council of Attorneys-General (SCAG) members should commit funding to develop training courses and other resources targeted to RRR needs, and obtain advice on what is best practice remote witnessing of EPOAs.
1 Australian Law Reform Commission, Elder Abuse— A National Legal Response – Final Report – ALRC Report 131 (May 2017) (ALRC Elder Abuse Report).
2 Ibid [5.3]. See also [3.125] and [5.17].
3 Law Council of Australia, ‘Constitution’, paragraph 2.1(c).
4 Ibid paragraph 2.1(b).