The Law Handbook 2024

888 Section 9: Health, wills and other legal issues affecting older people the principal. It is important that the attorney(s) appointed by the principal clearly understand that their responsibilities are to the principal, not to themselves (ss 63–70 Powers of Attorney Act 2014 (Vic)) (‘ PoA Act ’). The attorney must act in a way that is the least restrictive of the principal’s ability to decide; give effect to the principal’s wishes; provide the principal with support to participate in decision-making; and promote the personal and social wellbeing of the principal (s 21 PoA Act). They must act with honesty and reasonable care; not use the position for profit; avoid conflicts of interest; maintain confidentiality; and keep accurate records (s 63). Revoking a power of attorney Provided the principal (i.e. the older person) has decision-making capacity, attorneys who misuse funds can be removed by the principal completing a revocation document. If the principal is no longer legally competent, an application can be made to VCAT’s Guardianship and Administration List (see ‘Contacts’ at the end of this chapter). Depending on when the abuse took place, VCAT can also order the attorney to account for how and why they spent any missing funds and make an order to repay it (ss 77, 116 PoA Act). However, like with any debt matter, if the attorney has no assets and the funds have been spent, it may not be possible to recover any money. Misuse of an enduring power of attorney is an offence that is punishable by up to five years imprisonment (s 135). The Office of the Public Advocate booklet Your Voice: Trust Your Choice provides tips for older people making enduring powers of attorney. For more information on powers of attorney, see Chapter 8.7: Understanding powers of attorney. Signing documents: Pressure or fraud Older people may sometimes be asked to sign documents they do not understand and cannot read. The risk of this is increased for older people who are reliant on their family for support and advice. This can include people with limited English and/or who are not literate in either their original language or English. Older people with vision impairment may sometimes be unable to read documents for themselves and therefore put a lot of trust in their children or other family members to give them honest information about what they are signing. Take care if assisting an older person to sign a document who is vulnerable because of illiteracy, second language issues or limited or no sight. An independent, qualified interpreter should always be used to explain what is being put before them. Applying pressure to sign a document that a person does not want to sign or does not understand is abuse and an intervention order is a possible course of action. Relief may be sought by older persons if documents or contracts have been signed under circumstances of pressure, fraud, unconscionable conduct, or undue influence (see Commercial Bank of Australia v Amadio (1983) 151 CLR 447; Johnson v Buttress (1936) CLR 113; and Louth v Diprose [1992] HCA 61; McFarlane v McFarlane [2021] VSC 197). Living with an adult child There can be a number of reasons why an adult child may not move out of the family home, or may wish to return to live in their parents’ home for a short or long-term period. This arrangement may work well for both the adult child and the older parent, but it can also be a source of conflict, which can become abuse or family violence. When adult children seek to return to live in their parents’ home, the request may be sudden and unexpected. Parents may have little time to consider whether they really like the idea, or to discuss how living arrangements might work. They may feel pressured by the child or other family members to agree to the arrangement even if it is not what they want. Having an adult child (and possibly grandchildren too) suddenly sharing an older parent’s house is not always easy. Things might go well in the short term but, over time, these situations can deteriorate, and some people even end up afraid of their adult children. When children seek to return to their parents’ home, they are often motivated by something going wrong in their own lives. They could be dealing with a range of problems, which may affect their behaviour and, over time, create problems for the older person. These problems can include: • violence : some adult children who return to their parents’ home are fleeing family violence, while others may have been the perpetrator of family violence and been excluded from their own home; • depression, anxiety or other mental health issues : mental health problems are increasingly common in today’s society, and may be brought on by a relationship breakdown or substance misuse;