Community views sought on abuse of Powers of Attorney

The independent South Australian Law Reform Institute (SALRI) based at the University of Adelaide is inviting views from the community and interested parties as part of its review of the State’s laws on Powers of Attorney.

In the face of increasing concerns about the abuse of Powers of Attorney, SALRI wants to hear from everyday South Australians. They will be visiting Berri, Port Lincoln and Port Pirie to gather the views of the community and interested parties.

“We are keen to hear widely from the community and interested parties. We want to identify the problems or concerns with the current law regarding Powers of Attorney, gather the views of the South Australian community about how the law could be improved and we will consider alternative options implemented in other Australian jurisdictions,” says Director of SALRI, the University of Adelaide’s Professor John Williams.

Powers of Attorney (POAs) – more formally called Enduring Powers of Attorney – are legal documents which allow an individual (known as a principal) to confer authority upon another person (their attorney) to make financial decisions in accordance with the individual’s values, preferences and directions.

In order to widely consult the community, SALRI will:

  • Visit regional South Australia including:

Berri: Friday 7 August, 2.15–3.15 pm. Berri Hotel (Riverview Lounge), Riverview Drive

Port Lincoln: Friday 14 August, 10.30–11.30 am. Port Lincoln Hotel (Ballroom), 1 Lincoln Highway

Port Pirie: Tuesday 18 August, 10.30–11.30 am. Virtus Soccer Club Clubhouse, 26 Magor Road

  • Collect feedback from interested people via the YourSAy website until Friday 4 September 2020;

“Powers of Attorney provide a means by which individuals can control their future and have been described as ‘an important expression of autonomy’,” says Deputy Director of SALRI, the University of Adelaide’s Dr David Plater.   

POAs enable principals to choose to appoint a trusted person in anticipation of losing decision-making capacity and take effect at the point at which the principal loses that capacity.

These laws are contained in the Powers of Attorney and Agency Act 1984 (SA) (POA Act) and aim to ensure that vulnerable people – often older people – are protected under the law, and to prevent financial abuse.

“Powers of Attorney are excellent tools for planning ahead for later life and their benefits outweigh the risks. But while originally designed with good intentions in mind, this law can now have unwelcome results in practice,” says lead author, the University of Adelaide’s Dr Sylvia Villios.

“Instances arise where the principal lacks decision-making capacity, and the attorney abuses their role to receive an ‘early inheritance’ or otherwise misuses the principal’s funds. Examples include draining bank accounts or transferring the family home into the attorney’s own name.

“The effect of financial impropriety on a principal’s financial security can be a permanent and life-threatening setback.”

The views of the community and interested parties on present law and practice and the implications of any proposed changes will be taken into account by SALRI when considering changes to the law.

SALRI will also examine whether attorneys who abuse and misuse their powers face appropriate civil or criminal remedies that are sufficient to address misuse or deter potential offenders.

“An important issue that is raised is the concept of legal capacity as once it is determined that the principal is incapacitated, their attorney has the authority to act under the Power of Attorney. It is at this point that many of the principal’s fundamental rights may be taken away from them,” says Dr Plater.

“When assessing capacity, the principal’s rights must be protected. Protecting the rights of the principal will be the focus of SALRI’s review of the current law.”

People interested in making a submission are welcome to speak face-to-face with the legal experts to discuss their experiences and share their views on potential areas for reform at the community sessions. However, SALRI is unable to provide legal advice.

SALRI will consider submissions and provide a report to the South Australian Government by the end of 2020 with recommendations about how the law can be improved.

Tagged in South Australian Law Reform Institute, Research, Impact, Community, News

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