In 2017, the Australian Law Reform Commission (ALRC) conducted an inquiry into elder abuse which explored national laws available to protect older persons. Elder Financial Abuse (EFA) was a key focus of this inquiry, and the ALRC made various recommendations about enduring documents (enduring powers of attorney (‘EPAs’) and enduring guardianship) given the role that these documents, especially EPAs, can play in facilitating EFA and heightening the vulnerability of adults who have lost capacity. These recommendations included the development of ‘a national online register of enduring documents, and reviewing court and tribunal appointments of guardians and financial administrators’ following the national harmonisation of EPA laws (financial, health and personal) as well as the development of a ‘national model enduring document’.
Despite the lack of national agreement, the 2019 National Plan to Respond to Elder Abuse agreed upon by the Council of Attorneys General included achieving national consistency in EPA laws as a medium-term goal, whereas a national EPA register was noted as a short- to medium-term priority. That is, developing a national EPA register became the (unexpected) priority.
In response to this development, Associate Professor Kelly Purser, Associate Professor Bridget Lewis, Professor Tina Cockburn and Professor Sharon Christensen from the Planning for Healthy Ageing Research Program within the Australian Centre for Health Law Research, have published an article in the UNSW Law Journal suggesting national law reform to harmonise and improve EPA laws is a necessary first step, and that progressing a mandatory online register is premature, especially before an evidence-based approach to reforming enduring documents broadly has been adequately developed and considered.
Additionally, there are significant ‘foundational’ challenges that require examination, particularly in relation to an EPA register, before specific law reform proposals are developed.
You can access the published article (Strengthening the Response to Elder Financial Abuse and the Proposed Enduring Power of Attorney Register: Suggested First Steps) on the UNSW Law Journal website.