Achieving Greater Consistency in Laws for Financial Enduring Powers of Attorney (consultation paper)

The Australian Human Rights Commission provided this submission in response to the Commonwealth Attorney-General’s Department’s Consultation Paper on Achieving Greater Consistency in Laws for Financial Enduring Powers of Attorney (EPOA) (Consultation Paper).

The Commission’s primary recommendation is that all Australian governments should move swiftly towards the achievement of greater national consistency in EPOA legislation as a priority. 

As Australia’s population continues to age and with the largest intergenerational wealth transfer in Australia expected to take place in the coming decades, urgent reform to EPOA laws is needed to better protect the rights of older persons and prevent the abuse of older persons in all its forms.

The submission builds on the Commission’s previous and ongoing advocacy for the implementation of recommendations from the Australian Law Reform Commission’s 2017 report Elder Abuse – A National Legal Response (ALRC Report), including the harmonisation of EPOA laws and the development of a national register of enduring documents after agreement on nationally consistent laws is achieved.

This submission focuses on the following topics in the Consultation Paper: 

• key priorities and next steps in the move towards greater national consistency; 
• attorney duties; 
• information, resources or training for witnesses and attorneys; and 
• other initiatives for preventing and responding to financial elder abuse. 

While the focus of this submission is on the rights of older persons, the Commission acknowledges that the issues intersect across different groups and encourages the Attorney-General’s Department to consider the diverse needs and rights of all Australians.

Underpinning the Commission’s work and advocacy on EPOA law reform is a focus on human rights.

It is the Commission’s view that a human rights-based approach – where human rights norms and principles are integrated into all aspects of decision-making, law and policy development, implementation and monitoring – is fundamental to addressing the systemic challenges caused by current inconsistencies in EPOA laws across jurisdictions and to safeguarding the rights, wishes and preferences of principals.