Issues of financial elder abuse in Queensland
Governments and the legal fraternity continue to grapple with how to protect our elderly citizens who have impaired capacity. It is no secret that as we get older, afflictions such as dementia have increasing prevalence. Afflictions of the mind, such as dementia, cause us to lose the legal capacity to make our own decisions. How do you control your financial affairs and assets which you have built through the course of your life when the law says that because you suffer from dementia (or other infirmity impacting your mind) you do not have the legal capacity to make decisions?
Further to these issues, we have all heard stories about:
- Mum or Dad entering into their twilight years and starting to suffer dementia. Children suddenly become overly concerned about preserving what they see as their inheritance. Some children have even taken it upon themselves to divest their parent of their assets/money whilst they are living, as a so-called “early inheritance”, because “Mum/Dad don’t need it anymore”.
- Where a parent has a trusted child assisting them with their affairs, and that child abuses the trust that they have been given and uses the parent’s money for their own benefit.
Enduring Power of Attorney
The document which has long been established to deal with situations where you lose capacity is called an Enduring Power of Attorney. That document allows you, as the “Principal”, to appoint someone who you inherently trust to manage your financial affairs and make decisions about your healthcare in circumstances where you are unable to do so. An Enduring Power of Attorney is an important document for anyone over the age of 18.
Amendments were made to the form of the Enduring Power of Attorney in November 2020 in an effort to address some of the community concerns and issues described above. Primarily, the change to the form has introduced additional transparency by enabling a Principal to require an Attorney to keep third parties (such as other children or friends) advised as to financial matters undertaken and decisions made on behalf of the Principal. By making the job of an Attorney more transparent, the theory is that an Attorney is less likely to abuse the trust which has been placed in them.
Of course, this concept of transparency continues to require a measure of trust in the Attorney to fulfil the obligation of disclosing to the nominated third parties about the actions which they are undertaking on the Principal’s behalf.
The Office of the Adult Guardian (now called the Office of the Public Guardian) was also strengthened in 2020 to provide special powers to protect adults with impaired capacity and investigate claims of abuse, neglect or exploitation. Prior to the amendments in 2020, the Office of the Adult Guardian had a restricted capacity to be able to assist adults with impaired capacity. With these special powers now in place, the Office of the Public Guardian is a far more effective regulator, as it has the ability to investigate claims of abuse and thereafter can pursue a variety of different means to ensure that the adult with impaired capacity is protected from abuse and harm.
We strongly recommend that every adult have in place a valid and meaningful Enduring Power of Attorney.
Please do not hesitate to contact the Solicitors at ABKJ Lawyers who can assist you with putting in place an appropriate Enduring Power of Attorney, and can also assist in matters of elder abuse.
Call (07) 5532 3199 or submit an online enquiry.