There are no legislative requirements for clients to provide DVA with original or certified documents in order to appoint a nominated representative as third party representative.
There are, however, legal requirements that apply in determining the acceptability of such documents by a delegate, which relate to satisfying standard of proof and fraud control requirements under the Commonwealth Fraud Control Framework, which is binding under the Public Governance, Performance and Accountability Act 2010.
For example, a delegate must be satisfied, in accordance with the requisite standard of proof, that copies of documents purporting to confer legal authority are likely to be true copies of the original records.
Further, a delegate must be satisfied from their review of the copy documents provided and any related actions, that there are no indicators of potential fraud from the copy documents provided.
Delegates must be satisfied, on the basis of evidence, that it is more likely than not that the person nominated as the client’s third party representative, in fact, holds a valid legal authority to manage the client’s legal affairs.
In summary, these requirements mean that a delegate must be satisfied that there is a valid source of legal authority to empower the person nominated as representative to manage the legal affairs of the relevant veteran.
Examples of irregularities in a non-certified copy of an EPOA document which may suggest there is not a valid legal authority
Examples of irregularities on the face of a copy of an EPOA document which may warrant further inquiries (including potential fraud) could include one or more of the following:
- apparent alterations or redactions to the text of the document
- the provision of an incomplete document (for example, where it is clear that pages are missing, or portions of text are cut off at the margins) and
- the presence of obvious defects in the execution of the document, such as the complete absence of witness signatures, and witness initials on each page of the document.
Examples of irregularities in the circumstances of the request for appointment may include:
- the history of any previous requests to appoint nominated representatives in relation to the client, including any refusals of requests or terminations of previous appointments; and
- the relationship of the person nominated as the attorney in the EPOA to the DVA client who is said to have conferred that power. For example, is the person someone who would ordinarily be expected to be nominated as an attorney, such as a close family member of the client, or a neutral third party who holds a relevant professional qualification and registration such as a public trustee, lawyer or accountant? Further checks to verify the legitimacy of the uncertified copy of an EPOA document might be warranted if:
- there is no apparent relationship between the person nominated as the attorney and the DVA client; or
- there is an apparent relationship which may suggest that the person who is nominated as the attorney in the EPOA document has a conflict of interest between their obligations as attorney and their personal financial interests. (For instance, if the uncertified copy specifies a person who is an owner of a residential care facility at which the person resides, or a person who provides other care-related services to the person.)
Further resources
For further information, refer to: