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LIV Supports National Power of Attorney Scheme

LIV Supports National Power of Attorney Scheme

By Elder Law Section

Guardianship Succession 

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The LIV's letter to the President of the Law Council of Australia is below: 

Mr Morry Bailes
President
Law Council of Australia


Dear Mr Bailes

Enduring Powers of Attorney (Financial)

The Law Institute of Victoria ('LIV') welcomes the opportunity to provide comments to the Law Council of Australia ('LCA') on the Office of the Public Advocate (Victoria)'s Options Paper on Enduring Powers of Attorney (Financial) ('the Paper'). These comments are informed by members of the LIV's Elder Law Section.

The LIV considers 'Option 1: consistent provisions to maximise the potential of the laws and register to prevent abuse' as the most preferable option. The LIV considers that this option provides the greatest benefit in preventing abuse, and provides third parties with a reliable means to quickly and easily determine the validity of an Enduring Power of Attorney (Financial) (EPOA). The LIV considers that a national harmonisation of EPOA laws and introduction of a national EPOA register provides the opportunity to achieve best practice in all Australian jurisdictions.

Should Option 1 not be pursued, 'Option 2: consistent provisions to better identify who is authorised to do what, when' is the second preferred option. The LIV notes that the legislative changes under Option 2 may be more manageable to implement, and would still provide improved safeguards against abuse.

The LIV makes the following additional comments:

National Register

The LIV supports the introduction of a national register. A primary benefit of a register system is that it provides a reliable means for third parties to quickly and easily verify that an EPOA is current and valid, a significant step in preventing an EPOA being used as an instrument of financial abuse.

The LIV considers that a register should be pursued regardless of whether there is unity of law between the states and territories, as the focus of a register is to minimise the potential for misuse, rather than mutual recognition and usability of EPOA documents between jurisdictions. The register should combine information currently held in existing state register. Transitional provisions will likely need to be developed for EPOAs made prior to the commencement of mandatory registration.

The LIV submits that the design of any register will need to recognise the private and confidential nature of matters that may be included in an EPOA (such as details of properties, bank accounts, etc), and the extent to which information is publicly available, or available only to a registered user who pays a fee.

Role of the Registering Body

The LIV submits that a registering body that is charged with ensuring the validity of EPOAs prior to registration would best ensure the reliability of the register, which is critical to its success.

However, the LIV acknowledges the significant resourcing and information sharing that would be required by such a system, and the likely resulting cost to consumers (both in relation to registration fees, and the time taken to register the document). The LIV notes that similar registration bodies (such as ASIC) are not required to confirm the validity of documents lodged.

A possible solution would be for the registering body to screen EPOAs for compliance with formality requirements only (as the Land Titles Office does in the Tasmanian system). The registering body would not be responsible for ensuring the eligibility of the appointed attorney, or that the donor had capacity at the time of making the appointment.

Mandatory Registration

The LIV considers that a national uniform law should require mandatory registration of an EPOA before the powers are activated and the POA can be validly used. The LIV notes that this system currently operates in Tasmania, where registered documents are available to third parties, and third party protection provisions facilitate reliance on the register to determine validity.

The LIV notes that efforts would need to be made to ensure the register is accessible, particularly for CALD communities, to avoid disadvantage.

Forms

The LIV submits that there should be a single, uniform form across all Australian jurisdictions. This will facilitate increased familiarity and understanding among all parties (particularly third parties) of the nature and scope of EPOAs, allowing them to more easily identify who can do what, and when. Should checking validity not be the responsibility of the registering body, any discrepancies in an EPOA will be more easily picked up where there is only a single form in use.

However, the LIV notes the flexibility in allowing a donor to appoint different persons as attorney in each case, however, this can be achieved by a uniform form providing a clear delineation between financial and medical, and no restrictions are imposed on appointing different people to different roles.

 


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