New report recommends Australia urgently creates nationally consistent enduring powers of attorney laws

Age Discrimination Commissioner Robert Fitzgerald AM has said Commonwealth and State and Territory governments must act now to achieve national consistency in laws governing enduring power of attorney. 

It follows the release of a new report which found there are significant gaps in Australians’ knowledge about their rights and responsibilities around the legal document - which is exacerbating the risk of financial elder abuse. 

An enduring power of attorney allows a person to appoint someone else to make financial and legal decisions on their behalf, including if they become unable to do so in the future due to illness, cognitive decline or other circumstance.  

The Commission’s report, titled Empowering futures, surveyed more than 3000 adult Australians to understand current levels of awareness and use of these documents and what Australians did or did not know about financial enduring powers of attorney.  

While the research found that enduring documents are widely valued for providing peace of mind and for empowering people to take control of how future decisions affecting their lives will be made, there is limited public awareness about them and most Australians have not set one up for themselves (87%). 

The research found concerning critical gaps in people’s knowledge and understanding about how enduring powers of attorney should work, which can leave them vulnerable to potential abuse and exploitation from misuse of these documents, whether from ill-intent or ignorance. While many were aware that things could go wrong, few are equipped to take the necessary steps to protect themselves.  

In its major recommendation, the report said Federal, State and Territory governments must prioritise the creation of a nationally consistent financial enduring power of attorney laws and establish a national register. It also recommended governments develop and deliver a national community awareness strategy to raise awareness among adult Australians about these legal instruments and the value of having one in place, and for the development and delivery of national educational materials – such as a dedicated website and training courses. 

“All Australians, regardless of age or ability, have the right to live with dignity, security, autonomy and control over their lives and wellbeing,” said Commissioner Fitzgerald. 

“An enduring power of attorney is a critical option to give people that control, but most Australians know very little about it. If people do not understand their rights and responsibilities, it can drive misuse and abuse – severely hurting the people this legal document is meant to protect. 

“The way forward is clear. As recommended in our report, and by numerous inquiries going back almost twenty years, national consistency in legislation is the first step to both reducing confusion and creating a coherent national approach that fills the knowledge gaps.” 

Among the report’s other key findings: 

• Only half of people with an enduring power of attorney (52%) sought professional advice before creating one, and just a quarter (25%) of those currently acting as appointed decision-makers felt they understood their responsibilities very well when they started their role.  
• Concerningly, two in five (37%) had granted an enduring power of attorney to someone who showed characteristics identified as risk factors for perpetrating elder abuse. 
• Very few Australians (6%) felt they knew a lot about financial enduring powers of attorney, while more than a third (35%) felt they knew nothing despite some of them being involved in the process in some way. 
• Australians overwhelmingly (85%) agreed that more education was needed on financial enduring powers of attorney. Having information that is standardised across the entire country was identified as a top need (93%). 

“Two decades of inaction in Australia is long enough. The time to act is now.  I look forward to working with all levels of government, and the relevant bodies to help better safeguard older people's rights, wishes and preferences in future decision-making,” Commissioner Fitzgerald said. 

Read the report, Empowering Futures: A national survey on the understanding and use of financial enduring powers of attorney.

ENDS | Media contact: media@humanrights.gov.au or 0457 281 897