Do you have one?November 3, 2015 by Clewett
Enduring Power of Attorney – Do you have one?
Some frightening, but true stories
1. Mother locked away
A mother with dementia was moved from her home by her daughter, and without the knowledge of her son who lived in the UK. She was taken to live with the daughter’s family and locked in a bedroom. The mother executed a Power of Attorney at a time when she lacked capacity. Her house was sold without her knowledge and the funds were used to pay off the mortgage on the daughter’s house and buy a four wheel drive. It was also used to buy a family holiday, pay for school fees and a trip to New York for one grandchild. The mother therefore lacked funds for a bond for a residential facility, which she would otherwise have been able to access.
2. The Real Estate Agent
An elderly widow (without immediate family) with dementia was befriended by a real estate agent. He was a friend of her gardener. She owned her own home. He charmed her and she took mortgages out over her home to lend him money and buy him a car. She is now in a nursing home. Two thirds of her assets have been taken. It was an aged care assessment team member who suspected that abuse but only after most of the funds had been taken.
3. Solicitors with title deeds
A son and daughter, who were both solicitors, changed the title deeds on properties owned by their parents into their own names. They had systematically sold the parents’ share portfolio and recouped the funds to themselves. Their parents are living in an inaccessible and very small rental property – effectively leaving them with no assets. Neither of the parents are aware as they both have cognitive decline and as they trusted their children they signed anything put in front of them.
These are real stories of abuse published by Alzheimer’s Australia in 2014 in its discussion paper “Preventing Financial Abuse of People with Dementia”.
Prevention of this type of abuse does not have a simple, one-action fix. There will always be people who can justify theft. In a world where people are increasingly personally isolated, formal protective measures are very important. The use of the Enduring Power of Attorney is one means of protection but it is only effective if the parties fully understand what the document means and that with great power comes great responsibility.
Making an Enduring Power of Attorney is an act of taking control – control over your life after you have ceased legally to be able to make decisions. It differs from an ordinary Power of Attorney in that respect because a Power of Attorney ceases to be effective once the Principal has lost legal capacity. Legal controls and restrictions on the actions of Attorneys exist and are enforced if the matter comes to the attention of a relevant court or tribunal. However, it involves an act of faith on the part of the Principal. Unlike a Will, an Enduring Power of Attorney gives discretionary power of one person over the life of another person because the Attorney is empowered to do most actions that the Principal could do for themselves. The Enduring Power of Attorney or EPA creates the Attorney Avatar.
EPAs are not just for the elderly. Any one of any age, without warning, can become incapable of making personal decisions regarding their health and finances.