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EPOAs behaving badly - What to do when an appointed attorney acts inappropriately

26 Feb 2016

Many residents in aged care facilities have attorneys appointed under an Enduring Power of Attorney (EPOA), giving the attorney the power to make personal, health and financial decisions on behalf of the resident.

While appointed attorneys are required to act in the best interests of the resident pursuant to the Powers of Attorney Act 1998 (Qld) (the Act), some attorneys may fumble and fail to act in the “best interests” of the principal.

So what can you do when an appointed attorney behaves badly?

What we mean by “behaving badly”

EPOA’s operate to appoint a person to make personal, health and financial decisions on behalf of the principal in different circumstances. Unfortunately there are instances of attorneys abusing their power.   

In the aged care environment, the following may be signs that an attorney is breaching their duty to act honestly and with reasonable diligence in protecting the interests of the principal:

  • the resident’s care costs are not being paid;
  • the attorney refuses to approve necessary medical treatment (for no apparent reason);
  • there are suspicions the attorney may be using the resident’s pension payments for their own use; or
  • there are suspicions the attorney is gifting significant assets of the resident to themselves or others.

Thinking about turning a blind eye?

While there is no statutory requirement compelling aged care providers to report rogue attorneys, a failure to report suspicions that an attorney may be acting in breach of an EPOA could have significant legal consequences for an aged care provider.

Aged care providers owe a duty of care to their residents. In ordinary circumstances this duty of care does not extend to ensuring that the attorney is acting in accordance with their statutory obligations. However, if an aged care provider becomes aware of instances where an attorney is clearly violating the mandatory requirement to act in the best interests of the resident, the aged care provider’s duty of care may be enlivened.

By way of example, if an aged care provider becomes aware that an attorney is misappropriating a resident’s assets, and fails to report such conduct to the Public Guardian, this could leave the provider exposed to a potential claim in negligence.

The steps required to adequately discharge a provider’s duty of care in light of clear violations of an EPOA is heavily dependent on the circumstances of each case. 

Dealing with an attorney who is behaving badly

The most cost effective and efficient way to resolve issues with a resident’s attorney is to make a confidential complaint to the Office of the Public Guardian.

The Public Guardian is an independent body which works to protect the rights and interests of adults who have impaired capacity and in doing so will investigate allegations of abuse, neglect and/or exploitation. Once a complaint has been made, the Public Guardian has extensive powers to investigate the attorney.

If an investigation reveals the attorney has acted without regard for the principal’s interests, the Public Guardian can take steps to have the EPOA revoked and if there is no other suitable appointee, appoint the Public Guardian as guardian and Public Trustee as administrator.

Alternatively, it may be determined that the attorney was simply misguided as to the nature and extent of their duties, in which case a directive from the Public Guardian may be sufficient to rectify past breaches of the EPA and avoid any future breaches.

In both cases, the end result will hopefully see the resident’s interests being better protected. Having raised its concerns with the Public Guardian, the aged care provider will also be in a far better position to show that it has discharged its duty of care to the resident.

How can we help?

Hynes Legal are experts in providing assistance to aged care providers in dealing with instances of an appointed attorney acting inappropriately. If you believe that an appointed attorney to one of your residents is not acting in the best interests of the resident it is critical to take the correct steps to protect the interests of your organisation. Conversely, we are also well equipped to work collaboratively with aged care providers in developing strategies to deal with cases where attorneys have behaved poorly. The best strategy is to be prepared and Hynes Legal can assist you in preventing and dealing with these issues.

 

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