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Enduring Powers of Attorney: Promoting attorneys' accountability as substitute decision makers
Abstract
The misuse and abuse of Enduring Powers of Attorney (EPAs) by attorneys, particularly in relation to financial decision-making, is a growing concern. This paper explores the opportunities to enhance accountability of attorneys at the time of the execution of the document in Queensland.
A four-stage multi-method design comprised a critical reference group; semi-structured interviews with 32 principals or potential principals, attorneys and witnesses; two focus groups with service providers and a state-wide survey of 76 principals, attorneys and witnesses.
Across all methods and user groups, understanding the role and obligations of the attorney in an EPA was consistently identified as problematic.
Promoting accountability and understanding can be addressed by greater attention to the role of the attorney in the forms/ guidelines and in the structure and witnessing of the forms, increased direction about record keeping and access to appropriate advice and support.
... They also collected survey and interview data from 60 people to compare families with successful POAs and those where POA-FE had occurred (Steinman et al., 2017). An Australian study undertook surveys and interviews involving approximately 100 principals or potential principals, attorneys and POA witnesses and two focus groups with service providers (Tilse, Wilson, White, Willmott, & McCawley, 2014). Members of this research team conducted an earlier analysis of cases heard by a guardianship tribunal, including 60 cases of suspected FE, some involving POA-FE (McCawley, Tilse, Wilson, Rosenman, & Setterlund, 2006). ...
... 54). Tilse et al. (2014) found "little evidence of a collaborative process that involved the principal and attorney in discussion of powers, intentions, role and responsibilities" (p. 196). ...
Enduring powers of attorney (POAs) are commonly used legal instruments that enable older people to plan for asset management in the event of future incapacity. The policy objective of POAs – empowering control over money and property – are frustrated when POAs are misused to financially exploit older people. This commentary integrates theory and evidence to propose a conceptual framework for POA-facilitated financial exploitation (POA-FE). Identified risk factors include inadequate knowledge about the POA role; family conflicts; attitudes of entitlement; and lack of planning and preparation for financial decision-making. POA-FE occurs on a continuum of behavior and strategies for preventing POA-FE are suggested using strengths-based approaches for older people and their attorneys.
... With an aging population and rising prevalence of chronic conditions, including dementia, 1 there is increasing recognition of the importance of advance care planning (ACP). [2][3][4] ACP is an ongoing communication and planning process that aims to clarify a person's values and preferences for their health care. 5,6 Although this process occurs more frequently for older people and those with multimorbidity and degenerative diseases, ACP is also relevant to younger populations where sudden severe illness may occur. ...
Objective
Substitute decision makers (SDMs) can be required to make difficult health care decisions on behalf of individuals lacking decision-making capacity. Online resources may be helpful in preparing and supporting SDMs. This study systematically explored the frequency, content and usability of Australian online resources containing health care substitute decision-making content written for consumers.Methods
In April 2019, Google searches were conducted to identify online resources containing health care substitute decision-making content for consumers. Analysis comprised mapping resource characteristics, including target audience (individual-specific, SDM-specific, mixed) and thematic analysis of content. Usability was assessed using the Patient Education Materials Assessment Tool (PEMAT).ResultsOf the 61 resources identified, the most frequent were webpages (57%), individual-specific (43%) and those produced by government organisations (31%). Only 15 resources (24%) were written for SDMs. Content themes identified were: defining the scope of the SDM role (93%); recommended traits or characteristics of SDMs (80%); instructions or principles regarding standards for decision making (75%); duties of SDMs (70%); and supports (46%), rights (16%), barriers (8%) and benefits (5%) for SDMs. The median (interquartile range) PEMAT scores (out of 100) were 66 (27) for understandability and 60 (55) for actionability.ConclusionsSDMs have a vital role in making decisions for people lacking decision-making capacity. Online resources are a potential source of information and support for SDMs in Australia. This study identified key gaps in availability, content and usability of existing SDM resources, highlighting the need for the further development of such resources. We suggest that future resource development include SDMs in the design and evaluation processes.What is known about the topic?An aging population and a greater need for decisions to be made on behalf of others who lack capacity means that health care substitute decision-making is occurring more frequently. Appointing one or more SDMs may occur as part of the advance care planning process. However, being a healthcare SDM can be difficult and stressful. People frequently use the Internet to search for health-related information.What does this paper add?This paper systematically examined the frequency, content and usability of existing Australian online resources with substitute decision-making content written for a consumer audience in English, and identified key gaps in online resources available to support SDMs.What are the implications for practitioners?Although there is a need for resources written for SDMs, authors of online resources need to pay careful attention to the purpose, content and usability of their resource. Future resource development should include input from SDMs and involve them in evaluation to assess whether the resources meet target audience needs.
... Key problems regarding ACDs include the document not being available at the crucial time (e.g., at the point of resuscitation) [12], the lack of clarity with which treatment requests for future hypothetical scenarios are expressed [13], and not conveying this important information to key parties, such as partners, family members and health care providers [14]. Further, there is a risk of misuse and abuse of these forms of authority, particularly enduring powers of attorney for finances [15], by those empowered with substitute decision-making responsibility. ...
AimTo examine lesbian, gay, bisexual and transgender (LGBT) people's attitudes to advance care planning (ACP) options and alternative decision-making at the end of life. Method
Three hundred and five LGBT people completed an online or paper-based questionnaire, comprising fixed-choice questions and open-ended questions. ResultsMost respondents, particularly those identifying as female or transgender, preferred a partner to be their alternative decision-maker at the end of life should the need arise. Fifty-two per cent of respondents had spoken to this person about their wishes. Regarding legal options enabling end-of-life decision-making, 29% had an enduring power of attorney, 18% an enduring guardian and 12% an advance care directive. Conclusion
Despite the significance of ACP for promoting the rights of LGBT people at the end of life, the take-up of these options was nearly as low as for the general population. The potential for targeted strategies to increase the take-up of ACP is identified.
Anticipatory decision-making instruments – continuing powers of attorney and advance directives – are increasingly seen as a promising way forward to enhance the autonomy of adults with impaired capacity by making the adult's voice an influential component of future decisions. However, little is known about the experiences with these instruments in practice. This article presents the findings of an interview study looking at the expectations and experiences of both adults and attorneys with a Dutch anticipatory decision-making instrument, the so-called levenstestament. In order to realise its full potential, anticipatory decision-making instruments, such as the levenstestament, should be embedded in robust, timely and ongoing conversations between adults and attorneys about the adult's (changing) wishes and preferences and the role of the attorney.
This project reviewed current policy, legislative, and service responses to elder abuse in Queensland to provide a snapshot of the current context as well as an evidence base to allow stakeholders, including government and non-government organisations, to better understand the prevalence and characteristics of elder abuse in the state. Current responses and interventions to elder abuse have been mapped to identify issues, needs and gaps in elder abuse prevention and service responses in the state. Research design and activities incorporated detailed input from stakeholders and a dedicated research reference group and elder abuse data from a number of government and non-government stakeholder organisations was synthesised and included in this report. Available: https://www.communities.qld.gov.au/campaign/end-domestic-family-violence/our-progress/enhancing-service-responses/tailoring-responses-meet-needs-vulnerable-queenslanders
This paper draws upon findings from a secondary analysis of suspected financial abuse cases in files of the Guardianship and Administration Tribunal in Queensland, Australia. The paper explores the association between formal and semi‐formal asset management arrangements and suspected financial abuse cases. The role of families as formal asset managers is also considered.
This paper critically evaluates the Law Commission’s recommendations as presented in the Commission’s report reviewing Part IV of the Protection of Personal Property Rights Act 1988. This legislation defines the scope for enduring powers of attorney (EPAs). The paper advocates that the establishment of a central register for EPAs will be of substantial benefit, as it will provide an effective means of monitoring the use and misuse of EPAs. The paper concentrates on the effects of the current regime on older people, and it interviews six individuals who are actively engaged in work with older people in the Wellington region to identify the main areas of concern surrounding EPAs. The focus of the interviews was developed from the Law Commission’s recommendations against the establishment of a central register. The paper identifies some very real concerns with the current law's ability to curb the misuse of EPAs which leave older people open to abuse. It concludes that the Law Commission needs to re-evaluate the issue of misuse of EPAs as its report does not adequately deal with current flaws in the law.
Current approaches to the assessment of cognitive capacity in many jurisdictions seek to balance older people's empowerment with their protection. These approaches incorporate a presumption of capacity, a decision-specific rather than global assessment of that capacity, and an obligation to provide the support needed for adults to make or communicate their own decisions. The implication is that older people are assisted to make decisions where possible, rather than using substitute decision makers. For older people, decision making about financial matters is a contentious domain because of competing interests in their assets and concerns about risk, misuse and abuse. In residential-care settings, older people risk being characterised as dependent and vulnerable, especially in relation to decisions about financial assets. This paper reports an Australian study of the factors that facilitate and constrain residents' involvement in financial decision making in residential settings. Case studies of four aged-care facilities explored how staff interpreted the legislative and policy requirements for assisted and substitute decision making, and the factors that facilitated and constrained residents' inclusion in decisions about their finances. The observed practices reveal considerable variation in the ways that current legislation is understood and implemented, that there are limited resources for this area of practice, and that policies and practices prioritise managing risk and protecting assets rather than promoting assisted decision making.
This article examines the history and uses of the financial durable power of attorney and compares it to the alternative property management approaches of guardianship and trust creation. It then discusses the general lack of definition of the role of the agent under the financial durable power of attorney and problems that this lack of definition has begun to cause. Finally, it proposes a role for agents that comports with the purposes underlying the creation of financial durable powers of attorney and the public’s expectations about how such powers will operate.
Background:
Supported decision-making and personal budgets for services are the new paradigms.
Method:
Supported decision-making proposals from the Australian State of Victoria are analysed against international trends to determine the viability of laws reflecting new international norms of the United Nations Convention on the Rights of Persons with Disabilities 2006 (CRPD).
Results/conclusions:
The article concludes that it is desirable to pursue supported decision-making and allied legal reforms, but the contribution of the law is small and the new supported decision-making paradigms have similarities to old paternalist guardianship, as well as possible unintended consequences. It is suggested that realising the equality, support, protection, and socioeconomic service aspirations of the CRPD raise important practical challenges for governments, for service providers, for families, and-centrally-for people with intellectual disability (ID).This article examines the limited contribution law can make to this enterprise.
The durable power of attorney (DPOA), one of the nation's most ubiquitous and powerful legal documents, is a popular planning tool for seniors anticipating a decline in cognitive or physical well-being. By executing a DPOA, seniors can grant an agent (typically an adult child) broad authority to engage in financial transactions on their behalf. While DPOAs are touted as a way for seniors to enhance their autonomy, the author argues that they often have the opposite effect. Under most states' statutory regimes, agents are given little guidance as to what standard to use to make decisions on behalf of elders, and have no duty to communicate or consult with elders. As a result, agents are prone to "over-reach" their traditional fiduciary duties and make decisions that are inconsistent with elders' values and wishes. In most states, for example, an agent who felt her mother would be safer living in a nursing home could force an unwanted move by using the DPOA to sell the mother's house without so much as notifying her. The author argues that permitting agents to act without communicating and consulting with elders is inconsistent with agents' underlying legal duty of obedience. Drawing on literature from the fields of psychology and sociology, the author shows that permitting such actions can also be expected to fundamentally alter family power structures, to the detriment of elders' well-being. The author therefore proposes that states explicitly require agents to communicate with those on whose behalf they act and to provide advance notification of certain "fundamental" transactions. This novel, yet simple, mechanism would empower elders to better monitor their agents and bring DPOAs a step closer to fulfilling their promise as autonomy-enhancing devices.
Objective: To explore older people's knowledge and experience of the law relating to assisted and substitute decision making in Queensland.
Method: The sample (N=377) comprised older people and their families living in metropolitan Brisbane (n=242) and South West rural Queensland (n=29) and residents living in aged care facilities and retirement villages and their family carers in Brisbane (n=106). The data collection involved 48 focus groups and 29 individual interviews. A thematic analysis of the data sought to make links to a range of social variables used to draw the sample.
Results: In the majority of focus groups and individual interviews, older people had a limited or low understanding of the law relating to substitute decision making. Structural factors of lower income, cultural background, disability, rural location, nursing home residence and gender can limit ability to make informed choices and are likely to increase the risk of financial abuse.
Conclusion: There is a need to raise community awareness about the advantages and disadvantages of substitute decision making arrangements and to provide educative strategies to address commonly held misconceptions about the nature of enduring powers of attorney provisions.
Following a 10-year research program around assets and ageing, the present paper summarises the work done, and outlines the major findings from the perspectives of older people, carers, and service providers. The research has explored the roles and practices of family caregivers in managing older people's assets, the experiences of older people who receive such assistance, the factors associated with the financial abuse of older people with and without cognitive capacity, and the concerns of aged care practitioners when the mismanagement of assets is suspected. The experiences of older people and their carers are characterised by a range of responses that generate a number of issues for social work practitioners. Taking a critical perspective, the article discusses practice responses in relation to financial abuse, the assessment of the capacity of the older person to make decisions, and assisted and substitute decision making around asset management.
Curbing the license to steal: A discussion of English law and possible reforms for the durable power of attorney
- Conroy AJ
No one in charge: Durable powers of attorney and the failure to protect incapacitated principals
- Rhein JL
House of Representatives Committees.Older people and the law
- Australia Parliament Of