Powers of Attorney can form an important part of your plan to manage your financial affairs once you lose capacity (or at any other time prior). Your choice of attorney is critical as this person could come to have complete control over all of your assets.
A Power of Attorney can be limited – you can nominate that the attorney cannot enter into transactions where they have a conflict of interest, including the making of gifts or the sale of assets – or it can give your attorney the power to do anything that you can legally do by an attorney, depending on how it is drafted.
Even once you have created such documents, you should regularly review your Power of Attorney to assess whether the nominated attorney or attorneys remain suitable. You can revoke a Power of Attorney at any time, so long as you still have the legal capacity to do so. In some circumstances they can also be revoked by the State Administrative Tribunal.
Appointing the wrong person in a Power of Attorney can have devastating consequences for you and your family.
So called "Elder Abuse" has been described by the World Health Organisation as "a single, or repeated, act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person".
A Power of Attorney document is a valuable tool, but it is vulnerable to misuse leading to elder abuse. Not all perpetrators have insight into their actions – they may start with the best of intentions but then not cope with the pressures of caring for another, or be unable to see beyond their own needs
A recent situation reported by the ABC provides insight into this kind of situation, and how an individual can take action where they suspect that an older person is being abused financially. In that example, a granddaughter took steps to protect her grandparents after her father and uncles had engaged in conduct that the State Administrative Tribunal has deemed "questionable transactions". Independent investigation into those transactions is ongoing.
You can take proactive steps to safeguard your rights as you age.
A lawyer experienced in succession planning can support you to make decisions about your future and prepare documents to protect your wishes.
Also, if you witness what you believe could amount to elder abuse, you can take action, including by contacting a lawyer or contacting one of the bodies that has a mandate to respond to elder abuse, including:
- Advocare (advocare.org.au)
- The Office of the Public Advocate (publicadvocate.wa.gov.au);
- The Older Persons Rights Service, a joint initiative between Advocare and the Northern Suburbs Community Legal Centre ( nsclegal.org.au/legal-services/elder-law-services)
- WA Police.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.