When trends become templates: abuse of Enduring Power of Attorney

By Brian Herd / 26 November 2021
3 min.
Worthwhile read for: Individuals, Families, Couples, Parents, Children of aging parents

Lawyers can be great barometers of social change. 

In the last two months I’ve had no fewer than eight new clients with the following complaint:

“My sibling [and the nursing home] is denying me contact or access to my mum or dad.”

It is a form of isolation not of the COVID-19 kind, but the parent kind. There are a number of common features of this isolation:

  • it is usually perpetuated by the parents’ Enduring Power of Attorney;
  • it is also facilitated by the nursing home;
  • the isolator generally asserts that it is the wish of the parents not to have contact with the other children; and
  • in many cases these parents may have lost their capacity and are incapable of expressing a considered wish.

What is even more baffling about this conduct is it often comes out of the blue, with no build up or rationale. It is often imposed on other children who are as mystified as we are, as to the conduct of the particular child. You can always speculate that the motivation is financial gain but in many cases it’s not. It is a curious conduct that can be seated by childhood enmities and jealousies or just the sense of power that being an Enduring Power of Attorney brings to a particular child’s status. 

In most cases, the conduct adversely affects the parents’ health and wellbeing and creates all sorts of difficulties and conundrums for nursing homes. They have to grapple both with the purported legal directions of an Enduring Power of Attorney and their duty of care to the parents. It is so pervasive at the moment in terms of conduct, that we have now devised a template of a letter which is sent to the nursing home and to the offending child. It is remarkable how little change is required to the template given the common features of the conduct. 

In terms of solution, quick action is required if you want to restore contact and access to the parents. In many cases, neither the nursing home or the offending child appreciates that their conduct is a breach of their duties either as an Enduring Power of Attorney or as an aged care facility. This needs to be emphasised to them at the outset of the redoubtable template. 

In addition, under the Aged Care Act, a person can become what is known as a “representative” in relation to a resident in the facility. This person does not have to be the Enduring Power of Attorney. As such, it opens up an opportunity for other children to seek to become a representative of their parents which could then entitle them to receive information about their parents from the nursing home. 

Whatever your family situation where isolation has developed or occurred at the hands of a sibling, it is essential to act quickly rather than to let it continue to happen as if you condone it. 

As always, doing something is always better than doing nothing especially when it comes to your parents.

Brian Herd
Brian is a Partner in our Estates and Succession team.

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