Attorney-General Vickie Chapman has tasked the University of Adelaide’s South Australian Law Reform Institute with examining what problems exist under current legislation, what improvements could be made and what alternative options from other jurisdictions might work.
Powers of Attorney – formally known as Enduring Powers of Attorney – are legal documents which confer an individual’s authority to another person in anticipation that their decision-making capacity may be hindered.
The trusted person will become the decision-maker once the principal loses capacity.
SALRI’s Sylvia Villios, the report’s lead author, said the investigation was prompted by SALRI’s examination of the state’s family provision legislation three years ago.
When SALRI discussed the fairness of laws surrounding wills, POA and financial abuse issues were persistently raised by the South Australian community.
“They said the attorney was found to be doing things like draining the bank accounts of the person that had entrusted them with the power to act on their behalf, and transferring property into their own name, basically leaving the principal with nothing and then financially destitute,” Villios told InDaily.
“They couldn’t then put themselves into aged care… at the time they are most vulnerable.”
SALRI deputy director David Plater said a point of tension in POA laws is when legal consent is given, which is determined by the definition of “capacity”.
“An important issue that is raised is the concept of legal capacity as once it is determined that the principal is incapacitated, their attorney has the authority to act under the Power of Attorney,” Plater said.
“It is at this point that many of the principal’s fundamental rights may be taken away from them,” he said.
SALRI will also explore whether attorneys who abuse their power face appropriate civil or criminal punishment.
“There’s no real recourse, and even under the Powers of Attorney Act, there are various little remedies,” Villios said.
“There’s a fine of $2000 even though you could have robbed the person of millions of dollars of income and assets.”
The review will consider public submissions via online consultation hub YourSAy and face-to-face regional roundtable consultations from August, as well as advice from legal, medical and health experts.
“We are particularly interested in your personal experiences with the laws in this area,” the website says of the general submissions.
YourSAy submissions close on Friday, September 4, with a report to be delivered to the State Government by the end of the year.
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