Jade Lattimore: Are enduring powers of attorney and of guardianship essential legal safeguards or elder abuse?

When it comes to planning for the future, enduring powers of attorney and enduring powers of guardianship are two of the most important legal safeguards.

They allow a trusted person to make financial, medical, and care decisions if someone loses the ability to do so themselves.

But what happens when that trust is broken?

Unfortunately, these legal instruments — designed to protect — can sometimes be manipulated and misused.

Let’s dive into how EPAs and EPGs work, how they can be abused, and what safeguards can be put in place to prevent this.

What’s the difference between an EPA and an EPG?

An EPA allows a chosen person to manage finances, including banking, property, and investments.

An EPG gives a person authority to make medical and care decisions, such as consent for treatments, living arrangements, and support services.

If an older person loses decision-making capacity without these documents in place, the State Administrative Tribunal steps in to appoint a decision-maker.

If no suitable family member or friend is available, the Public Trustee (financial) and Public Advocate (medical/care) will be appointed.

When trust turns into elder abuse

Sadly, the very people appointed to protect an older person’s best interests sometimes misuse their power.

The most common form of EPA/EPG-related abuse is financial exploitation, where an appointed attorney uses the elder’s money for personal expenses, transfers assets to themselves without consent, or sells property or valuable items for personal gain.

A guardian with medical and care decision-making power may neglect or make harmful choices that go against the elder’s wishes or best interests.

We often see cases where a person entrusted with an EPA or EPG controls who the elder can and can’t see, effectively isolating them from loved ones.

This limits their independence and cuts off their ability to speak up or seek help.

How to protect against abuse

Here’s how to ensure EPAs and EPGs are used responsibly:

Get professional help when setting up documents. EPAs and EPGs should be professionally prepared and independently witnessed. Avoid “at-home” documents witnessed by family members, as these can be more easily manipulated.

Regularly review and revoke if necessary. If a relationship of trust breaks down, the elder should revoke and update their documents.

Choose the right person for the job. A professional can help ensure the person chosen is financially responsible, unlikely to have a conflict of interest, and fully aware of their legal and ethical obligations.

Educate and monitor. Awareness is key! Attorneys and guardians should understand their legal responsibilities and must accept that their paramount duty is to act in the older person’s best interests.

Consider limited or conditional powers. EPAs and EPGs don’t have to grant unrestricted power. They can be limited or made conditional to reduce the risk of abuse.

Further, you can appoint more than one person. Having two people required to act jointly can reduce the risk of elder abuse.

Elder abuse is confronting, but it’s not something we can afford to ignore.

If you or someone you know is experiencing mistreatment, don’t stay silent — call the Elder Abuse Helpline on 1300 724 679.

This is the third in a four-part series on elder abuse by Jade Lattimore, principal and senior lawyer at Greenstone Legal in West Perth and Albany.