An Enduring Power of Attorney is one of the most powerful documents that you will ever sign. This was highlighted in a recent article in the Sunday Mail by Anthony Gough, Anthony highlighted cases where elderly people had fallen victim to abuse by people that they had appointed as their attorney.
Thirty-two percent of recent cases in the Queensland Civil and Administration Tribunal related to financial abuse under enduring powers of attorney with the dollar amounts adding up to millions. Most of the abuse was done by the victim’s adult children. This is consistent with my experience, as I am seeing more and more clients who are concerned about the abuse of elderly people by the abuse of trust of an attorney who has been appointed under an Enduring Power of Attorney document.
Some critical matters that need to be understood when appointing an attorney under an Enduring Power of Attorney include:
- The financial attorney may have complete control over all of your assets;
- Your personal/health attorney may have complete control over all of your personal and lifestyle matters (even though the personal/health attorney does not start until you lose capacity.);
- It is very important to remember that you can choose when the power of financial attorney begins. If you are confident that you will not need assistance until you have lost capacity, it may be wise to nominate that this power does not commence until you lose the ability to make decisions for yourself.
- You have the ability to limit the power of the attorney that you appoint. For example you can ensure that your attorney does not enter into transactions where the attorney has a conflict of interest, including the making of gifts, or the sale of any assets;
- It is often wise to appoint more than one attorney who may act jointly, or in the majority. This will ensure that not one single person can make all of your decisions for you;
- You should have implicit trust in the person that you appoint as your attorney. If you have any reservations you should not appoint that person at all;
- If, after you have appointed an enduring attorney, you can revoke that Enduring Power of Attorney at any time so long as you still have the mental capacity to do so.
- You should regularly review your Enduring Power of Attorney to ensure that the people you have appointed continue to be suitable, or whether any limits should be applied.
- Appointing the wrong person in an Enduring Power of Attorney document can have devastating consequences for you and your family.
On Wednesday 15 June 2011 was World Elder Abuse Awareness Day. This day is a timely reminder of the importance of the requirement to protect elderly people against the acts of those who are willing to take advantage of their vulnerability.
It is very important that if you are considering appointing an Enduring Power of Attorney that you obtain professional legal advice from a competent and experienced legal practitioner in this area.
Please contact me if you have any queries or concerns about financial abuse.