about canberra
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IGN 3 rd World Congress on Adult Guardianship ARLINGTON USA – 28-30 MAY 2014 The Pursuit of an Australian Enduring Power of Attorney Presenter – Andrew Taylor, Public Trustee for the Australian Capital Territory. About Canberra. - PowerPoint PPT PresentationTRANSCRIPT
IGN 3rd World Congress on Adult GuardianshipARLINGTON USA – 28-30 MAY 2014
The Pursuit of an Australian Enduring Power of AttorneyPresenter – Andrew Taylor, Public Trustee for the Australian Capital Territory
About Canberra
• Canberra is Australia’s Capital City and capital of the Australian Capital Territory (ACT)
• Population 385,000• Seat of Australian parliament• Australia’s largest inland city, 8th largest overall• Entirely planned, not unlike Washington DC• Described as a city in a park• Designed by an American Walter Burley Griffin in 1913
About PTACT
• Public Trustee for the ACT (PTACT)• Independent, ACT Government statutory body• Traditional trustee service• Wills, Estates, Powers of Attorney, Trusts, Investment• Acts as attorney• Acts as financial manager for persons without capacity
Life expectancy and capacity Life expectancy (Australian Bureau of Statistics)
1950 2013
FEMALE 70.6 84.0
MALE 66.1 80.0• Australian life expectancy – 4th highest• ACT has Australia’s highest life expectancy • 330,000 Australians suffer from dementia (pop 23.2M)• Expected to increase by ⅓ to 400,000 in less than 10 years• The single greatest cause of disability in older Australians
• One quarter of people over the age of 85 have dementia
In short, we are living longer but not with capacity (Alzheimer’s Australia)
Enduring Power of Attorney (EPA)
A legal document that -• gives a trusted person (the attorney) • the legal authority • to act for another (the donor or principal) • to make binding decisions• beyond the donor’s loss of capacity • until revocation (by the donor or Tribunal) or death
of the donor
Benefits of an EPA
The donor (principal) can choose –• who will represent them• when the power/authority commences• whether immediate/temporary/loss of capacity• an alternate in the attorney’s inability
How does an EPA differ from a General Power of Attorney?
• made in contemplation of inability/disability• activated as required or on loss of capacity• continues to be valid after loss of capacity • empowers your attorney to manage your affairs even
though you are unable to instruct• ceases to have effect upon revocation or death
Low take-up rate of EPA’sThe Australian community continues to be apathetic towards having an EPA with a low take-up rate in the community
Common excuses for not making an EPA include -•“My spouse, or my children, will look after me if I lose
capacity”•“I will make my Enduring Power of Attorney when I need to”
Whilst apathy is evident, another more plausible reason is that, in Australia, the safety net available to people who do not have an EPA in place is perhaps better than the EPA itself
If you don’t have an EPA...
A specified list of people can apply on a person’s behalf to a Guardianship Tribunal.
Tribunal can informally hear and determine that the person does not have decision-making ability
May appoint a person (similar to an attorney) to make the same decisions as an attorney
What can a Tribunal do?A Tribunal order seeks to protect persons with a decision-making disability and –• determines capacity• decides on a suitable guardian/manager• can hear complaints about the guardian/manager• ensures dealings with the person’s land must be approved• protects the person’s land against fraud – caveat on land title• ensures the manager lodges accounts with PTACT for examination• can remove a manager
The Public Trustee or Public Advocate may be appointed as a last resort Downside - high cost of this form of management to the community
Problems with EPAs
• was the deed made under duress?• who decides when donor loses capacity?• loss of capacity can be episodal• exists purely as a deed without registration• lacks complete mutual recognition in all states/territories• potential tool for elder abuse• lack of an Australian register of EPAs• absence of a ‘watchdog’ over the actions of attorneys• weakness of, and inconsistencies in, witnessing provisions
(Queensland Law Reform Commission - A review of Guardianship Laws – 2010)
Powers of Tribunal
to determine capacityto appoint a suitable guardian/managerto hear complaints about the guardian/managerto terminate a manager/guardian’s appointmentto ensure manager presents accounts for examinationto protect he person’s land title by caveatto facilitate scrutiny of dealings with property by PTACT
ObstaclesRegulatory landscape of Australian laws - State/territory legislation dealing with substitute decision-making, while based on the same paradigm or framework, differs in significant ways
Obstacles to portability throughout Australia
To make the EPA more appealing it is mandatory that we remove the impediments including government/community intransigence as well as legislative and process differences etc
Multiplicity of different state/territory registration requirements, forms and fees prior to land transactions
Issues
Most pressing issue - state/territory mutual recognition
Australian EPA laws provide that mutual recognition is limited to the extent that the powers could validly have been given by an EPA in the state/territory in which it is being recognised
The time of revocation is not fixed with any certainty
Lack of education leads to confusion and abuse of older people
Number of orders made by Tribunals is growing by 10% annually
IssuesEPA needs to be structured similar to Tribunal order
Experts see the EPA as a means of preventing elder abuse. Statistics tell us that most financial elder abuse is perpetrated by family members and often under an EPA
Some see compulsory registration of EPAs as a solution to validate any transaction made in reliance upon it. The reality is however that financial elder abuse is also perpetrated under registered EPAs often with greater ease
People move around Australia freely and often and have property and family in many states/ territories
IssuesCompulsory registration must be uniform throughout Australia
Registration does not establish veracity of an EPA, merely its existence
Only one State provides that acts under an EPA are invalid unless the EPA is registered.
All Australians should be afforded equal protection Registered EPA may heighten the credibility of an attorney in the minds of those relying upon it
Non-uniform attempts have been made to strengthen the EPA by tightening up the signature and witnessing provisions with complicating results
Issues
Australian state/territory governments continue to makeprocesses unwieldy and complex by working separately
Better education is needed around financial elder abuse
National register is vital permitting registration once with validity in all states/territories
Lower cost to older persons Would permit a search to be made 24x7 of one register to ascertain whether an EPA is registered
Legislative issues
Australia’s Parliament has no power to make laws about substitute decision making. This is the preserve of 6 states and 2 territories.
The Standing Council on Law and Justice (SCLJ) has a brief to harmonise Australian laws
In Nov 2008 SCLJ issued a communique on Substitute Decision Making.... States/territories also agreed on a project to improve the effectiveness of mutual recognition of powers of attorney between jurisdictions, as recommended by the House of Representatives Standing Committee on Legal and Constitutional Affairs (Standing Committee on Law and Justice 2008)
Legislative issues
The Victorian Parliament Law Reform Committee – Inquiry into Powers of Attorney recommended –•a ‘Powers of Attorney Act”•consistent names for documents and powers•consistent names to parties to an EPA eg ‘principal’ and ‘representative’•easier to understand forms•one document for all types of EPA•publication in multi-languages•universal approach to education around EPAs targeting seniors(Victorian Parliament Law Reform Committee – Inquiry into Powers of Attorney - Aug 2010)
A way forward
• co-operation between States/Territories• uniform, ‘word for word’ identical laws in every state/territory• strong appetite in the commercial world for change• Australian Bankers’ Association (ABA) has agitated for uniform
substitute decision making arrangements (Australian Bankers’ Association 2013)
• opportunities to reducing significant complexity, cost and confusion encountered by bank staff and customers
• Australian ‘Applied Laws’ legislation ie a law is enacted in one jurisdiction and then applied in other states/territories(Australian Parliamentary Counsel’s Committee Protocol 2008)
A way forward
Special opportunity - same political party in office in most Jurisdictions across Australia
New scheme could sit alongside existing arrangements so that no repeal or harmonisation of existing laws is required. In time the new scheme could effectively overtake existing enduring powers (John Billings, Dep Pres VCAT 2008)
Technological advances - national databases accessible 24x7 more realistic and less expensive
Like many complex problems the answer is in a planned, cooperative, incremental approach