Proposals for national uniformity and a register for enduring powers of attorney are considered by some to be “an important safeguard against elder abuse”.
We do not agree. National uniformity of the law would certainly be convenient, but what is more likely to safeguard is a fundamental requirement that anyone making an enduring power of attorney (“EPOA”), or accepting appointment as an attorney, be legally advised by a solicitor about the nature and effect of the appointment.
We recommend the making of EPOAs because loss of capacity can happen any time and, if you do not have an EPOA, your affairs will become subject to the scrutiny and intervention of public servants.
We see so many disastrous situations where the Public Guardian or the Public Trustee get involved in the private lives of ordinary people to their disadvantage.
We see so many disastrous situations where proper advice is not taken by people making powers of attorney, and the prescriptive effect of the law results in dreadful disputes.
The financial and personal consequences could never have been imagined by ordinary people.
Many of those dreadful situations could have been averted had the person making the EPOA, AND the person accepting the appointment received competent legal advice about the EPOA.
Uniformity of law does not assist ordinary people to understand the serious importance of EPOAs, and a register of EPOAs will add to the costs of having proper advice and representation, and will potentially be a deterrent to people getting decent and proper advice.
There is no certain “key” to mitigating elder abuse, but individual legal advice appropriate to the individual circumstance is more likely to mitigate financial elder abuse than uniformity of law or a register.