Preventing Financial Elder Abuse: A Critical Commentary on Harmonisation of Enduring Power of Attorney Laws

TL;DR

This paper critiques the push to harmonize financial enduring power of attorney laws in Australia, arguing that it may not effectively prevent financial elder abuse without addressing underlying knowledge gaps and risky practices.

Contribution

The paper introduces a critical analysis of harmonization as a policy solution for FEPOA-related financial elder abuse, emphasizing the need for separate research and reform.

Findings

Harmonization of FEPOA laws is a slow process and often fails to achieve uniformity.

Current knowledge gaps and risky practices are not resolved by harmonization alone.

Legislative variation offers opportunities for innovative research on preventing financial abuse.

Abstract

Ending the abuse of older people in Australia is a national policy priority. Harmonisation of financial enduring power of attorney (FEPOA) legislation is regularly called for to protect against financial elder abuse. A FEPOA is a legal instrument by which an adult appoints one or more people to manage their legal obligations, money and property, particularly during periods of incapacity. Although older Australians are urged to make FEPOAs, and a majority of those over age 65 report having one, these instruments are implicated in an estimated 50%–85% of cases of financial elder abuse. This commentary offers a critical perspective on legislative harmonisation as a policy intervention to prevent financial abuse committed via FEPOA arrangements. We address three main issues. First, we explain several approaches to harmonisation, illustrated with examples from different areas of law‐making, noting that harmonisation is often a slow process that does not achieve uniformity. Second, we argue that deficiencies in knowledge and practices that create risks of financial abuse via FEPOAs will not be cured by harmonisation alone. Third, we highlight that the legislative variation across states and territories provides opportunities for innovation in research. Further investment in high‐quality research is essential to guide effective legislative and compliance strategies to prevent the financial abuse of older people.

Calls for harmonising financial enduring power of attorney (FEPOA) laws aim to protect older adults from abuse. However, we lack evidence on which legal rules deter FEPOA abuse and warrant inclusion in nationally consistent laws. Knowledge gaps and risky practices must be addressed separately from the slow law reform process.