Financial abuse of older people is most often committed by an adult child and an Enduring Power of Attorney is one of the tools used to do it. In Western Australia there are things you can build into your EPOA when you make it that make misuse much harder.
If you or someone you know is experiencing elder abuse, call the WA Elder Abuse Helpline on 1300 724 679, Monday to Friday, 8.30am to 4.30pm. In an emergency call 000.
What is elder abuse?
Elder abuse is a broad term covering physical, psychological, sexual and financial abuse or neglect directed at older people.
It’s an almost invisible form of abuse, because it happens inside relationships of trust. Family, friends, care facilities, the neighbourhood. A stranger mugging an older person on the street makes headlines. A son or daughter taking an early inheritance through emotional pressure never sees the light of day.
Australia’s first national prevalence study, run by the Australian Institute of Family Studies and published in 2021, surveyed 7,000 people aged 65 and over living in the community. It found that around one in six had experienced abuse in the previous year. Psychological abuse was the most common form and adult children were the most common perpetrators. Almost two thirds of those affected didn’t seek help.
How does an Enduring Power of Attorney get misused?
An EPOA gives your attorney control of your money and property.
The pattern we see is an attorney who treats the money as an early inheritance. Moeny used to pay their own bills here and there. A house sold sooner than it needed to be. Loans to the attorney that were never going to be repaid. Rarely a dramatic theft, usually a slow erosion that nobody notices until the money is needed for aged care and it isn’t there.
The system makes it harder to catch than it should be. An EPOA doesn’t have to be registered unless it’s being used to deal with land, so there’s no central record of who holds one; and once you’ve lost capacity, you can’t revoke it yourself.
How can you reduce the risk when you make one?
The decisions that protect you are made when the document is drawn, not afterwards:
- appoint two attorneys jointly, so no one person can act alone;
- choose people who don’t need your money and think carefully before appointing anyone in financial difficulty;
- defer the power so it only starts if you lose capacity, rather than immediately;
- tell another family member who your attorney is, because an attorney who knows somebody is paying attention behaves differently; and
- review it when circumstances change, the same way you review your Will.
The right attorney is the person who will do the job properly.
What can be done if it’s already happening?
While the person still has capacity, they can revoke the EPOA and appoint someone else.
Where capacity has gone, an application can be made to the State Administrative Tribunal. The Tribunal can require an attorney to account for what they’ve done with the money and it can revoke the appointment and put an administrator in place instead.
Where a criminal offence has been committed, contact WA Police on 131 444 or 000 in an emergency.
Where to get help in WA
- WA Elder Abuse Helpline, run by Advocare, 1300 724 679, free and confidential, Monday to Friday 8.30am to 4.30pm;
- Advocare, WA’s peak body for seniors, 1800 655 566 for country callers;
- Elder Rights WA, a legal service for seniors at Legal Aid WA, Infoline 1300 650 579;
- Compass, the national elder abuse hub, 1800 353 374; and
- the Office of the Public Advocate, for concerns about a guardian or administrator.
Frequently asked questions
Can I appoint more than one attorney?
Yes. You can appoint two or more and require them to act jointly, meaning every decision needs all of them. It’s the single most effective safeguard you can build into the document.
Can I revoke an Enduring Power of Attorney?
Yes, at any time while you have capacity. Once capacity is lost you can’t and somebody has to apply to the State Administrative Tribunal instead.
Does my attorney have to keep records?
An attorney must keep your money separate from their own and keep proper accounts. The Tribunal can require them to produce those records, which is why an attorney who’s been careless has a problem long before anyone proves dishonesty.
What if I’m worried about my parent’s attorney?
Start with the Elder Abuse Helpline on 1300 724 679 for support and advice. If your parent still has capacity, the decision about what happens next is theirs and pressuring them is its own problem.
Getting your EPOA right
Most of the protection is in how the document is set up. We’ll talk through who to appoint, whether to appoint jointly and when the power should start.
Book an appointment or call the Wills team on (08) 9220 4433.
See Enduring power of attorney and guardianship or read EPOA and EPOG in WA: who makes decisions if you lose capacity.
This article is general information and not legal advice.
