Access to assets: older people with impaired capacity and financial abuse

abstract

This paper draws on findings from a secondary analysis of suspected financial abuse cases in files of the Guardianship and Administration Tribunal in Queensland, Australia. The paper explores the association between formal and semi-formal asset management arrangements and suspected financial abuse cases. The part of families as formal asset managers is also considered.

key words

older family

financial abuse

impaired capacity

enduring powers of attorney

asset management

elder abuse

Introduction

Australia has an ageing population, a significant proportion of whom, in late older age, will have a disability for decision-making to be paid to impaired capacity. Such older nation need others, inter alia, to manage assets upon their behalf. Asset management is facilitated from one side a range of mechanisms. In many jurisdictions (The Law Reform Commission of Ireland, 2003; Age belong to New Zealand, 2004; Department of Justice and Attorney-General (Qld) website, 2005) older tribe are encouraged by government to make a formal donation of asset management power [i]or[/i] part of to the other some type of power of attorney that continues despite the donor becoming incapacitated. In Australia, of the like kind instruments are called enduring powers of attorney (EPAs). Families are therefore increasingly likely to undertake the character of substituted decision-maker. In the case of the Queensland Department of Justice and Attorney-General, downloadable forms for making an EPA are neared on the website for easy access and use by the agency of interested parties. Such forms are also available for purchase from local freshs agencies to be completed without the necessity of legal advice. Semi-formal asset management mechanisms, like as being a joint signatory to a bank account, are other means of managing an older person's cash The assumption underpinning these mechanisms is that families will always act for the benefit of the older individual with impaired capacity. Research upon financial abuse (Langan & Means, 1996; Rabiner, O'Keele & Brown 2004; Brown 2003; Sklar, 2000) challenges of that kind assumptions.

Asset management comprising help with day-to-day tasks, like as banking and paying bills, and more mingled responsibilities, such as managing peculiarity and investments, are common tasks performed through family members (Tilse et al, 2005) greatest in quantity family members manage assets well. a certain number of family members intend to manage the older person's assets responsibly on the other hand have limited education or ability to negotiate an many times complex and time-consuming task (Langan & Means, 1996: 310) Others simply use the older person's assets as their have and intentional financial abuse arises (Langan & Means, 1996). This paper explores the association between formal and semi-formal access to assets and suspected financial abuse in a sample drawn from the files of the Guardianship and Administration Tribunal of Queensland, Australia. The paper also considers the association between families, EPAs and suspected financial abuse in the data.

Literature review

Substituted decision-making and enduring powers of attorney

Government have attempted to make decision-making in relation to older tribe with impaired capacity easier for family carers end the legal concept of substituted decision-making. Substituted decisions are decisions 'made upon behalf of people who, for reasons like as age or disability, cannot make decisions for themselves' (Carlson & Wilson, 1998: 17) The EPA is intended to assist those, usually family, who understand the lifestyle and exigencys of the person with the management of the person's assets for his/her benefit. An EPA, when signed by dint of someone with capacity, authorises another to act as their personal and/or financial decision-maker or attorney. The 'enduring' nature of the power deliver overs to the fact that the power continues plane when the person no longer has capacity. The relevant legislation notes that the substituted decision-maker will make decisions upon behalf of the person with impaired capacity; taking into account by what means the person may have made decisions on the other hand also taking into account the peculiar care and protection of the older somebody (The Powers of Attorney Act 1998 (Qld) Schedule 1 Part 1 - General Principles 7(4) 7(5))

There is evidence (Setterlund et al, 1999; Carlson & Wilson, 1998; Carney, 1982) that intimates substituted decision-making is not of that kind an easy or straightforward task. The assumption that the decision-maker will make advantageous decisions in the best interests of the older one fails to address a possible lack of knowledge upon the part of the decision-maker about in what way to facilitate appropriate substituted decision-making (Setterlund et al, 1999)

Encouragement of EPAs have not been supported by the agency of education about a good practice protoplast for substituted decision-making (Carlson & Wilson, 1998: 22) Neither older race nor family have been informed sufficiently about the risks and responsibilities of of the like kind decision-making (Setterlund et al, 2003) Research has indicated that the decision-maker wants to be aware of the influence of their be in possession of attitudes, biases and knowledge base on the outcome of possible choices (Carlson & Wilson, 1998: 19) flat in initial discussions about substitute decision-making powers being given to family, there were warnings about the ne for adequate safeguards: