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COTA Victoria appreciates the opportunity to contribute to the consultation on ‘Achieving Greater Consistency in Laws for Financial Enduring Powers of Attorney (EPOA)’. SRV is the leading service in Victoria dedicated to protecting the rights of older adults and preventing elder abuse. SRV’s team of advocates, lawyers, and social workers provides free legal advice and support to at-risk seniors, empowering them with the resources they need to address abuse.
Our primary focus in this submission is to determine how best to protect the principal’s wishes. While we support a national harmonisation of EPOA laws, we recognise that Victorian legislation already offers significant protection in certain areas. We are cautious about potential changes that could dilute our state’s legislation for the sake of standardisation. Overall, we are calling for a considered approach that preserves the nuances of Victoria’s existing protections, whilst moving towards a streamlined, national framework.
Our feedback is rooted in our practical experience of legislative gaps, with our central concern being the prevention of EPOA misuse. The feedback can be summarised in the following recommendations:
- Implement a process that prioritises the principal’s convenience while enhancing safeguards against potential misuse of an EPOA, ensuring the principal’s will and preferences are respected.
- We would also strongly support the introduction of a Register of Attorneys to relieve the principal of the obligation to notify third parties after revocation.
- Refine the criteria for those qualified to witness an EPOA, ensuring only those who have training in ascertaining decision-making capacity and comprehend its significance and associated risks are eligible.
- Introduce a requirement for qualified witnesses to actively inform attorneys of their responsibilities, mirroring the existing requirement for principals.
- Simplify the revocation process by requiring only one authorised witness and no other witness, considering circumstances of urgency, the unique challenges faced by older individuals, and the
restrictions on care facility employees. - Mandate attorneys to validate their understanding of their roles, possibly through some form of positive obligation or available training, confirming their comprehension of their duties.
- Enforce transparency from potential attorneys, requiring them to disclose any factors that might be deemed disqualifying, ensuring uniform standards regardless of their relationship to the principal.
- Streamline the EPOA revocation process in Victoria, with a stipulation for attorneys to return the original document promptly upon revocation.
- Additionally, in cases of an attorney’s financial distress, prioritise the safety and wishes of the principal.
- Develop an online platform for resources and training for EPOA witnesses and attorneys, focusing on role clarity and responsibilities.