What happens when there is an abuse of power of attorney? We are living longer than ever before. With increases in medical care and technology our bodies are kept going for an average of 82.4 years. While our bodies might keep going our minds don’t always remain functioning as they once did. Powers of Attorney are necessary for making decisions for us when we can’t and who we choose to represent us is very important. But what happens when there is an abuse of that position?
“Babies born today have the highest estimated life expectancy ever recorded in Australia,” said Beidar Cho, ABS Director of Demography. “In 2013-2015, the male and female combined life expectancy at birth estimate for Australia was 82.4 years. This was 11.9 years higher than the world average of 70.5 years in 2010-2015,” said Ms Cho. This means that with people living longer, we have higher rates of dementia. There are more than 353,800 people in Australia with dementia. Alzheimer’s Australia statistics show that dementia is the single greatest cause of disability in Australians over the age of 65 years, and the third leading cause of disability burden overall. It is the third leading cause of death in Australia.
These statistics are only going to increase with time. Helping our loved ones to ensure they have an enduring power of attorney and that we ourselves have one is essential to having decisions made well on our behalf from people we trust. But what happens when there is an abuse of power of attorney?
Abuse of Power of Attorney
Pete Stoopnikoff is a 92 year old self-made millionaire who understands what this is like. In June 2014, his daughter suggested that she and her brother be given enduring power of attorney to look after his financial affairs. Stoopnikoff agreed. What he wasn’t expecting was to have his accounts allegedly drained by his children. He says that they took funds from a shared account that was meant to cover his living expenses and duped him into signing over two other multimillion-dollar accounts as well as properties. He now says that he can’t afford to put gas in his car because two of his children took nearly all of his life savings. Unfortunately, this kind of abuse of power of attorney is becoming more and more common.
Martha Jane Lewis, executive director of the BC Centre for Elder Advocacy and Support says, “Older sons tend to be the biggest perpetrators,” she says, “and grown children often believe they’re entitled to their parents’ money. They feel they’re going to inherit it anyway. So, why not help yourself early?” This is also called inheritance impatience and at its core it is elder financial abuse.
Chrystie Stewart, the lawyer that Stoopnikiff has hired to rescind the enduring power of attorney says, “If that parent was under any undue influence,” Stewart says, “if they didn’t understand what they were doing or if there’s something unconscionable about it — so that the child would be unjustly enriched and the parent would have a corresponding deprivation — then I’d say that would be reason to void that contract.”
Enduring Power of Attorney
An enduring power of attorney document appoints someone to make financial and/or personal decisions on your behalf. They become your attorney at a time previously nominated by you – usually when you are incapacitated to make financial and personal decisions yourself. It may be that you choose one person to make financial decisions on your behalf and someone else to make personal decisions, or it might be one person who does both. They do not have to be someone in your family and sometimes it is very wise to choose from outside of your family – or a completely objective professional, like a lawyer.
Good character should be first and foremost when choosing a power of attorney. This is solid foundation from which you need to start. Are they trustworthy and known for completing tasks? Are they known for putting others first? Sometimes the role will potentially be required over a long period of time – will they stick with them well? Choosing a person of integrity to represent you should be a comforting thing. If you’re left wondering about how someone might treat you and your wishes when you’re incapacitated, then choose someone you won’t be wondering about. It is common for parents to make the wrong assumption that after they die, their children will change or do the right thing. In our experience, this is seldom the case. A child with a history of dishonesty and fraud is likely to be a catastrophic power of attorney and is likely to commit abuse of power of attorney.
Removing a Power of Attorney
There are several ways that an enduring power of attorney can end in Queensland, but removing one because of improper behaviour is an option. The Queensland Civil and Administrative Tribunal or the Supreme Court can remove an attorney or revoke an enduring power of attorney and the Public Guardian has the power to investigate if an attorney is not acting appropriately and in the best interests of the adult concerned.
If you suspect that the abuse of power of attorney is happening for a loved one, then please contact us today. Early intervention is often the only way to save assets from being spent. Our estate lawyers would be happy to speak to you about your concerns. At Estate Battles we offer a free, 10-minute phone consultation.