Search or view whole report

View PDF

Conclusion

In terms of substitute decision-making, it appears that the predominant barrier to utilising instruments such as EPOAs is a lack of awareness of their availability and ignorance as to their difference from an ordinary POA. Combined with this ignorance, many older people have a fear that there is potential for these instruments to be abused, either by appointed attorneys exceeding their powers, or activation of the EPOA on false representation of incapacity. Consideration needs to be given to the most appropriate and effective avenues by which older people are informed of their substitute decision-making options.

As with EPOA, the most significant barrier to accessing enduring guardianship is a lack of knowledge among older people. This combined with the onerous procedure for appointing a guardian, and the difficulties of finding someone to act as a guardian for those older people who are physically or socially isolated from family and friends, result in an under-utilisation of guardianship provisions. Other identified problems with guardianship and financial management arrangements include:

• concerns about mismanagement, delays and fees charged by the Office of Protective Commissioner
• concerns about the processes used by the Guardianship Tribunal in the assessment of incapacity
• lack of automatic right of representation before the Guardianship Tribunal
• lack of independent specialist advocacy services to assist people in their dealings with the Guardianship Tribunal
• lack of accessible review mechanisms of Guardianship orders made by the Tribunal.

In terms of advance decision-making mechanisms for dealing with estates of deceased persons, will-making is seen by older people as an accessible, and in most cases affordable process. On the other hand, the complexity of applying for a grant of probate for a deceased’s estate presents more difficulties for older people in terms of formality and expense. In most cases, one needs to hire a solicitor to undertake this task.

It is likely that those older people who are considering options for substitute decision-making, or are facing difficulties with their current substitute decision-making arrangements, will be physically, emotionally and possibly intellectually frail and vulnerable. The same is also true for older people facing end of life issues such as will-making and grants of probate. The difficulties confronted by them in seeking to access legal assistance, independent from other family members, can be substantial.