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Elder Abuse – A National Legal Response

Elder Abuse – A National Legal Response

The Australian Law Reform Commission report ‘Elder Abuse – A National Legal Response (ALRC Report 131) was released in May 2017 and elevates the prevalence of elder abuse as a national issue. The ALRC received 458 submissions from a wide range of people and organisations, and their final report drew attention to examples of serious physical abuse, financial abuse, neglect and exploitation of older people, and made 43 recommendations.

The ALRC acknowledged that elder abuse is everybody’s business. It is also everybody’s responsibility to recognise elder abuse and to respond to it effectively.

The ALRC report supports the two fundamental principles of autonomy and safeguarding and used a cross jurisdictional, cross-sector, multidisciplinary, multi-pathways approach to addressing elder abuse.

  • It calls for a national plan.
  • It calls for specific actions (for example, its recommendation for every state and territory to enact safeguarding legislation and powers of investigation for the Public Advocate and improving enduring appointments)

The ALRC is an advisory body and provides recommendations – but implementation is a matter for others.

 ALRC recommendations: financial abuse of older people

Specific key ALRC recommendations related to the financial abuse of older persons include:

  • Enduring documents
  • Family agreements
  • Superannuation
  • Wills
  • Banking
  • Guardianship and administration

The overall effect of the ALRC’s recommendations is to safeguard older people from financial abuse and support their choices and wishes through:

  • Building trust and confidence in enduring documents and advance planning tools
  • Protecting older people when ‘assets for care’ arrangements go wrong
  • Banks and financial institutions protecting vulnerable customers
  • Better succession planning across the SMSF sector

ENDURING APPOINTMENTS: Enduring powers of attorney and enduring guardianship (known as ‘enduring documents’) are important tools that allow people to choose who will make decisions for them, should they later lose decision making ability. These decision makers can play an important role in protecting people with impaired decision-making ability from abuse. However, these arrangements may also facilitate abuse by the decision makers themselves.

  • The ALRC recommends reform to laws relating to enduring documents, including adopting nationally consistent safeguards; giving tribunals jurisdiction to award compensation when duties are breached and establishing a national online register

FAMILY AGREEMENTS: Some family agreements involve an older person transferring the title to their home, or the proceeds from the sale of the home or other assets to an adult child in exchange for ongoing care, support and housing. The ‘assets for care’ arrangements are typically made without legal advice and are often not put in writing, leading to serious consequences for the older person if the promise is not fulfilled, or the relationship breaks down.

  • The ALRC recommends tribunals be given jurisdiction over disputes within families with respect to these arrangements

SUPERANNUATION: Elder abuse may involve deception, undue influence, threats or violence to coerce someone to contribute, withdraw or transfer superannuation funds for the benefit of the abuser.

  • A review of ‘binding death benefit nominations’ (BDBNs), particularly whether an enduring attorney may sign on behalf of a member.
  • A range of self-managed superannuation funds (SMSFs) recommendations

WILLS: Pressuring someone to make or change their will may, in some cases, be financial abuse.

  • To combat elder abuse and reduce undue influence the ALRC recommends that there be a national coordinated response to improving lawyers’ understanding of the potential for elder abuse using wills, though national best practice guidelines. Other professionals, such as financial advisors, may also benefit from improved understanding
  • The ALRC recommends community education about the dangers and difficulties associated with ‘do-it-yourself’ wills and other aspects of succession law in relation to the preparation and execution of wills and other advance planning documents

BANKING: Banks are in a good position to detect and prevent the financial abuse of their older and at-risk customers. The ALRC recommends that the Code of Banking Practice be amended to require banks to take reasonable steps to identify and protect the financial abuse of vulnerable customers. Steps include:

  • Training staff in how to respond appropriately to elder abuse and setting up systems to detect unusual transactions and other avenues for abuse
  • Ensure people are not being financially abused when they guarantee a loan

GUARDIANSHIP AND ADMINISTRATION: ARLC recommends that private guardians and private financial administrators be required to sign an undertaking about their obligations and responsibilities.

Limitations of the report

The report addresses legal matters and accordingly does not address some key non-legal response and intervention strategies, such as:

  • a national awareness campaign
  • prevention activities (such as community awareness raising)
  • early intervention strategies (the specific training of staff in agencies that typically first encounter and might refer suspected incidents of elder abuse – like GP surgeries, banks, aged-care assessment teams)
  • Lack of definition of the term ‘serious’
  • Insufficient comment on the importance of laws to deter elder abuse being accessible and understandable to frontline workers like Certificate II level workers and police constables
  • Safeguarding laws need to have a standard that does not need to rely on a finding of violence – it should to look to the family violence / domestic regime as a model
  • Insufficient support for a forfeiture rule whereby a perpetrator will forfeit a gift from a will if they cause the death of the person by abusing them

Gaps in the report

  • No proposed common definition of elder abuse
  • The ALRC concluded that existing criminal laws adequately cover conduct which constitutes elder abuse, and did not recommend the enactment of new offenses for ‘elder abuse’, ‘elder neglect’ or ‘misuse of powers of attorney’ (See new criminal laws enacted in the UK in relation to penalties related to coercive and manipulative conduct in the perpetration of elder abuse)
  • A range of potential prevention strategies are missing from the report
  • Lack of comment about the importance of the availability of advocacy services
  • Insufficient comment on social security issues
  • Insufficient comment about overcoming the current gaps between agencies where people either fall ‘between the cracks’ or where referral protocols are either missing or vague
  • Insufficient support for training of service staff, including training of aged-care residential staff in the subtleties associated with identifying elder abuse, including well-meaning actions that might constitute elder abuse
  • Failure to recommend remedies for aged-care residents who had been harmed or injured
  • Missed opportunity to recommend a national cooperative legislative solution
  • Did not address opportunities for systemic reform
  • Lack of comment clarifying when Enduring Powers of Attorney should be activated
  • No specific recommendations regarding the disability sector

Proposed implementation of a key ALRC’s recommendation

National Plan: a key recommendation of the ALRC

Attorney-General, Christian Porter, announced on 20 February 2018 that a National Plan to address elder abuse will be developed to ensure the protection of older people in our community: https://www.attorneygeneral.gov.au/Media/Pages/National-Plan-to-address-elder-abuse.aspx

“Addressing elder abuse is not just a legal problem,” the Attorney-General said.

Key first step

The Council of Attorneys-General, comprising the Commonwealth and all State and Territory Attorneys-General, have agreed to work together to develop the National Plan. The Council of Attorneys-General expects to receive a draft of the National Plan by the end of 2018.

“This is a key first step in bringing government, business and community stakeholders together to properly address this critical issue,” the Attorney-General said.

“As part of our 2016, $15 million election commitment to protect the rights of older Australians, the Turnbull Government will fund a national study to examine the prevalence of elder abuse in our society and provide evidence-based findings to inform the National Plan”.

“The national study will provide a strong evidence base to ensure that the National Plan provides an appropriate framework for strategies and actions that all sectors of the community can take to protect older Australians from abuse and, in the future, track our progress in protecting them from abuse.”

As recommended by the ALRC, the National Plan has five goals:

  1. promote the autonomy and agency of older people
  2. address ageism and promote community understanding of elder abuse
  3. achieve national consistency
  4. safeguard at-risk older people and improve responses
  5. build the evidence basis

Addressing the issue of elder abuse

Aside from setting out an agenda for a National Plan to address elder abuse, there has appears to have been little progress in relation to implementation of the ALRC recommendations.

The National Plan needs to be able to achieve real outcomes for older people experiencing abuse. The two classic elder abuse scenarios are:

  • physical, emotional and ‘granny flat’ financial abuse
  • Enduring Power of Attorney / banking financial abuse

The dynamics of elder abuse often mirror the dynamics of domestic violence and the cycle of abuse. Insights are necessary in response to the following four questions:

  1. How do you balance an older person’s right to make their own decisions with the need to protect them from abuse?
  2. Why does elder abuse continue to elude the health care system?
  3. What should we expect from banks to adequately address financial elder abuse?
  4. Should elder abuse be a crime?
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