Examining access to formal justice mechanisms for vulnerable older people in the context of enduring powers of attorney

Theoretically, enduring powers of attorney (EPAs) promote autonomy as an individual can nominate a person or persons they trust (the attorney) to make decisions for them if they lose legal capacity and can no longer make those decisions for themselves. However, the misuse of EPAs provides a relatively unchecked vehicle for elder abuse because once capacity is lost, the actions of the attorney can go unchecked. This is concerning when considering that Australia’s population is ageing and mentally disabling conditions impacting financial capacity, such as dementia, are increasing. Incidents of elder abuse are also expected to increase. The evidence base in relation to accessing formal justice mechanisms where there has been an alleged misuse of an EPA remains relatively limited.

The objective of this paper is to add to that evidence base by exploring the ability of vulnerable older people to access formal justice mechanisms to seek redress from abuse perpetrated through the misuse of a valid EPA. The first part of this paper considers definitional issues. The second part of this paper discusses the prevalence of elder financial abuse. The third part of this paper identifies select themes emerging from the reported judgements dealing with elder financial abuse including: who the victims and perpetrators of elder financial abuse are; the risk factors; access to justice issues; and the role played by legal professionals as well as other stakeholders, such as banks and staff in residential aged care facilities and/or community-based home-care providers, in the identification and prevention of elder financial abuse. The final part of this paper then concludes by making practical suggestions for legal practitioners preparing EPAs in order to minimise the potential opportunities for elder financial abuse created by the misuse of EPAs.