Person signing a legal document

Power of Attorney register progresses

In early March, Seniors Rights Victoria’s Principal Lawyer, Rebecca Edwards, took part in in a consultation in Canberra about the establishment of a national register of powers of attorney (POA) .

The Council of Attorneys-General is moving to establish a register as recommended by the Australian Law Reform Commission’s 2017 Report on Elder Abuse.

All states and territories were represented at the consultation including state justice departments, public advocates, tribunals, banks, law societies, elder abuse legal centres like Seniors Rights Victoria, Councils on the Ageing, and older persons advocacy networks.

Concerns raised included:

  • That the current proposal only relates to enduring POAs financial. Many people felt that a register should cover both enduring and general POAs and both financial and personal POAs. It was also raised that the register should include guardianship and administration orders. If this did not happen, a tribunal could make an order overriding a POA. However, the register might indicate that the POA was still valid.
  • Would it be mandatory to register POAs before the register is introduced? This might impose a massive burden on solicitors. Would a POA that was valid when made potentially become invalid? Another related question was when registration would occur – when the POA is made, or when it becomes operational?
  • If the POA becomes operational on loss of capacity, how is that recorded? Seniors Rights Victoria is particularly concerned about this given that capacity can fluctuate.
  • Who would have access to the register and what would the balance be between transparency and privacy.
  • Would it be possible to notify the donor of the POA if the attorney’s appropriateness came into question. For example, in New South Wales if a person say Mr X, had their Working with Vulnerable person’s card revoked, would people that they have appointed Mr X as their attorney be notified?

It is clear that a register is not going to stop elder abuse, or abuse of powers of attorney. There was agreement that this was not a silver bullet for financial elder abuse. A good community education campaign should also accompany the establishment of the register in order to lower occurrences of breaches of the powers of attorney.