Patterson, Kay; McDonald, Rachel --- "Elder abuse is everybody's business" [2018] PrecedentAULA 53; (2018) 148 Precedent 4

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ELDER ABUSE IS EVERYBODY’S BUSINESS

By the Hon Dr Kay Patterson AO and Rachel McDonald

Everybody has a role to play in addressing elder abuse. Lawyers, in particular, have a critical part to play. Wills, enduring documents and family agreements, if used correctly, are important tools for minimising risk. Lawyers have a responsibility to their clients to be aware of, and where possible protect against, elder abuse.

To help protect their clients, lawyers can learn to identify the risk factors and signs of elder abuse. This will enable them to educate older people about their rights under wills and enduring documents. It will also assist them to educate guardians and attorneys about their responsibilities and to establish referral networks with other professionals to support clients to resolve any relevant non-legal issues.

Lawyers who think creatively about solutions, including working collaboratively with other sectors, can make a real difference in protecting older people.

THE PROBLEM

Elder abuse has a devastating impact. It is most often characterised as behaviour that causes harm to an older person in the context of a relationship where there is an expectation of trust.^[1] The abuse can take many forms – financial, physical, psychological, sexual or emotional abuse, and neglect.

It is underreported. The available data suggests that is likely that between 2 and 10 per cent of older people in Australia experience elder abuse in any one year.^[2] The Australian Institute of Family Studies is leading a 2018 National Research Project to increase knowledge on the issue. The project will refine the definition of elder abuse, using workshops across Australia with key stakeholders and professionals, and surveys with older people, the general public and service providers. It will then interrogate existing data sources to develop a comprehensive understanding of the contexts, dynamics and risk factors associated with elder abuse.

Elder abuse is certainly not a new problem and, without sufficient intervention, it seems likely that the problem will increase as Australia’s population ages. Fortunately, the government, the private sector and the community as a whole are now paying attention. The Australian Law Reform Commission’s (ALRC) inquiry into elder abuse in 2017 was an important step forward in responding to this issue and provides a useful framework for mapping a way forward.^[3]

COMMONWEALTH v STATE AND TERRITORY POWERS

The split between Commonwealth and state and territory power creates significant practical challenges in comprehensively responding to elder abuse.

The Commonwealth has power over aged care, social security, banking and finance. The states and territories have responsibility for guardianship and powers of attorney law, and most criminal laws.

As noted by Wendy Lacey:

‘The reality – based on the Commonwealth’s legislative powers as set out in s51 of the Constitution – is that the Commonwealth has only a partial ability to effect a legal framework for preventing and responding to elder abuse’.^[4]

This division in power makes it difficult to determine who carries the practical responsibility for responding to the issue and has hindered a comprehensive federal response. The states and territories have independently developed their own strategies for dealing with elder abuse through varying policies, guidelines and laws. The responses vary considerably in scope and detail across jurisdictions.^[5]

This is why a National Plan to address elder abuse, as recommended by the ALRC, is so vital. All the Attorneys-General have agreed to work together to develop and implement the National Plan, announced in February.^[6] The Plan will help to consolidate existing work, develop best practice models and, importantly, provide a tool to measure progress.

ALRC INQUIRY INTO ELDER ABUSE

There are no specific laws in Australia dealing with ‘elder abuse’.^[7] Rather, behaviour that would constitute elder abuse is dealt with by general criminal offences (for example, assault and criminal neglect) and the civil law (for example, wills, property law, powers of attorney, guardianships and equity). The ALRC examined this fragmentation in its report and concluded that ‘existing criminal laws adequately cover conduct which constitutes elder abuse’.^[8] The ALRC considered new offences to be unnecessary and potentially duplicative of existing offences.

The ALRC recognised that the civil law can be a powerful tool for minimising the risk of elder abuse, particularly financial abuse where a person illegally or improperly uses the funds or other resources of an older person.^[9] This positions lawyers to take a proactive and useful role in safeguarding a client against potential abuse, particularly through using carefully drafted wills, substitute decision-making instruments, and family agreements. The following paragraphs briefly summarise the ALRC’s conclusions about these particular tools.

Wills

Pressuring an older person to make or create a will in a certain way constitutes financial elder abuse.^[10] The ALRC did not recommend specific changes to relevant doctrines like undue influence, but instead focused ‘on improving the understanding and contribution of lawyers in the making and execution of wills’.^[11] Lawyers can act as gatekeepers to ensure that clients are freely and voluntarily entering into wills, and have a full understanding of their impact.

To this end, the ALRC recommended national best practice guidelines be developed by state law societies and the Law Council of Australia. This is aimed at ensuring that lawyers have adequate professional competency to identify and respond to instances of undue influence.

Enduring appointments

Legislation in each state and territory allows a person to appoint someone to make financial and/or personal decisions on their behalf if they lose decision-making capacity (enduring guardianship and enduring powers of attorney, together referred to as ‘enduring documents’). However, the laws vary in terms of:

• whether financial and personal enduring documents can be combined or must be separate;

• the legal test for capacity/decision-making ability, and who can assess and certify this; and

• whether enduring documents must be registered.^[12]

Enduring documents are important advance planning tools. As noted by the ALRC, an enduring attorney can protect against abuse ‘where an older person with diminished decision-making ability is unable to protect themselves against fraud and abuse’.^[13] However, in some circumstances, these instruments may instead be used to facilitate financial elder abuse. To help ensure that enduring documents are fulfilling a protective function and are not exposing older people to greater risk, the ALRC made the following recommendations:

• there should be nationally consistent legislative safeguards to protect people making enduring documents;

• state and territory civil and administrative tribunals should have jurisdiction to award compensation for a breach of a duty under an enduring document; and

• a national online register of enduring documents should be established (provided there is agreement on nationally consistent laws and a national model enduring document).^[14]

Older people are sometimes unware of the rights they have under enduring documents. For example, they are entitled to appoint more than one attorney to act together or separately; they can put limitations and conditions on the power conferred by these instruments; and the documents can be revoked. Lawyers should educate clients as thoroughly as possible about their rights and responsibilities, whether they are making an enduring document or being appointed under one.

Family agreements

A particularly difficult area for lawyers is ‘family agreements’. Some of these involve ‘assets for care’, where an older person transfers assets or money to an adult child in exchange for ongoing care or accommodation. A common type of family agreement is a ‘granny flat’ arrangement, where proceeds from the sale of the older person’s residence is used to build a new residence for the older person on the property of the other party (for example, an extension to an adult child’s house).^[15]

These types of arrangements are popular in Australia and in many cases they can be beneficial for an older person. However, they are typically made without legal advice and are often not formalised in writing, which can make enforceability challenging.^[16] When things go wrong it may be hard to establish that a binding agreement was intended and what its terms were.

The ALRC recommended that tribunals be given jurisdiction over family disputes about residential property that is, or has been, the principal place of residence of one or more of the parties to the arrangement. This would provide a low-cost alternative to court for resolving disputes about these arrangements.

Older people may be unaware of the potential impact on their pension entitlements if they transfer assets to their children. Again, it is important for lawyers to be educating their clients about these implications.

SOCIAL CONTEXT OF ABUSE

Lawyers clearly have a critical role to play in safeguarding against elder abuse. Unfortunately, the law’s ability to respond to elder abuse can be restricted by the social context of the abuse.

Elder abuse most often happens within a family or domestic setting, with an older person’s adult child the most common perpetrator.^[17] It is important when dealing with clients to be conscious of the complex family dynamic in an abusive relationship. The older person may be ashamed or embarrassed that their child is abusing them, or they may be reliant on the child for care or housing. They may be wanting to avoid potential negative consequences for the child, or to preserve the relationship with their child and/or grandchildren.^[18]

This means that older people are often reluctant to seek help, and may be hesitant to use legal avenues to protect themselves – for instance, to report criminal behaviour to the police, or apply for an intervention order. They may even actively hide the abuse to avoid it being detected.

Lawyers should make sure they are educated about how to assess an older client’s capacity, and how to recognise signs of undue influence or unconscionability in an older client’s relationship with another person. This is often quite difficult. Particularly as an older client’s right to make autonomous decisions should always be respected.

Seniors Rights Service Victoria provides this advice in its ‘Assets for Care’ guide:

‘Your client has the right to act with autonomy and to choose to make improvident transactions or not to act in their own best interests; this does not absolve you from properly advising a client, even where they have not actively sought advice, rather than “just following instructions”.’^[19]

MULTI-DISCIPLINARY RESPONSE

This social context means that, even where a legal intervention is available, the matter may best be resolved in a non-legal way. A client may also benefit from being referred to a relevant service provider to address a broader social or health issue.^[20]

There is a lack of quality data on the most effective interventions for elder abuse. However, a multi-disciplinary response, incorporating the legal sector, is likely to be the most efficient way to address the varying and complex needs of an older person.^[21]

There are some excellent examples of innovative collaborative approaches to the issue already underway.

Health Justice Partnerships

Justice Connect Seniors Law has established health justice partnerships (HJP) in NSW and Victoria. In Victoria, Justice Connect partners with cohealth and St Vincent’s Hospital Melbourne. In NSW, Justice Connect partners with St Vincent’s Health Network Sydney.

HJPs have existed since 2012 with lawyers and health professionals working together in a range of ways. A HJP incorporates a legal professional into a healthcare team, to support healthcare clients needing legal assistance and to increase health professionals’ ability to recognise legal issues. This approach recognises that health professionals are often best placed to identify abuse and recognise legal issues early.^[22] The Law Council of Australia observed:

‘Joined-up services produce better outcomes for older people in addressing their legal problems, especially elder abuse, as they create alternative pathways to legal services through first contact service providers such as general practitioners, hospitals, aged care services and veterans’ services.’^[23]

Health professionals can build trusting relationships with older people and in some cases they may be an older person’s only contact with the outside world. This puts them in a strong position to notice warning signs of abuse, identify legal risks, and support clients in accessing legal services as early as possible.^[24]

In Australia nearly 30 per cent of people initially seek advice about a legal problem from their doctor, or other health welfare professional.^[25] In the first year report on its HJP, Justice Connect said:

‘Some legal issues arising in the context of elder abuse can remain unresolved for extended periods of time and, generally, it is only when significant consequences transpire – such as the sale of the family home – that the older person seeks help. At this stage the legal avenues to resolve the matter, if any, can be lengthy, stressful and costly. Therefore, lawyers not only rely on health professionals to identify abuse, but also to help support clients while they are seeking legal help.’^[26]

Justice Connect noted evidence in its first year of an ‘improved capacity to address elder abuse and other legal issues on individual, team and organisation-wide levels leading to better reach of clients and improved engagement with service’.^[27]

Other examples

In June 2017 the Queensland Law Society, together with the Australian Medical Association of Queensland, launched a trial involving general practitioners and staff at more than 300 medical clinics to increase recognition of signs of elder abuse and facilitate referrals of patients to lawyers and other support services where necessary.^[28]

The Eastern Community Legal Centre in Victoria convenes the Eastern Elder Abuse Network, which has over 100 members from a range of services including law, police, hospitals and health services, local government, aged care, government services and homelessness services. This makes cross-agency collaboration and co-ordination easier – for example, by facilitating the sharing of de-identified cases between services.

Outreach services can create simpler pathways for older people to access legal information and assistance. For example, Legal Aid NSW, in partnership with Seniors Rights Service, runs the Older Persons’ Legal and Education Program, which provides legal advice and assistance, and delivers talks on topics like planning ahead and elder abuse. Caxton Legal Centre provides home visits to older people experiencing elder abuse.

CONCLUSION

Elder abuse has been allowed to thrive as a hidden, deeply personal burden. We all need to work together to drive it into the light and address it effectively.

The Hon Dr Kay Patterson AO is Age Discrimination Commissioner and Rachel McDonald is Senior Adviser, Age Discrimination Team at the Australian Human Rights Commission. EMAIL [e-mail].

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^[1] World Health Organisation, ‘Elder Abuse’, Ageing and life-course, <http://www.who.int/ageing/projects/elder_abuse/en/> (accessed 2 July 2018).

^[2] Australian Institute of Family Studies, Elder Abuse: Understanding issues, frameworks and responses (2016) <https://aifs.gov.au/publications/elder-abuse>.

^[3] Australian Law Reform Commission, Elder Abuse – A National Legal Response, ALRC Report 131 (2017).

^[4] W Lacey, ‘Neglectful to the point of cruelty? Elder abuse and the rights of older persons in Australia’, Sydney Law Review, Vol. 36, 2014, 99-130 at 103.

^[5] Ibid.

^[6] Attorney-General, ‘National Plan to address elder abuse’ (Media Release, 20 February 2018) <https://www.attorneygeneral.gov.au/Media/Pages/National-Plan-to-address-elder-abuse.aspx>.

^[7] See above note 3.

^[8] Ibid, 24.

^[9] World Health Organization, Missing voices: Views of older persons on elder abuse (Geneva, 2002) <www.who.int/ageing/projects/elder_abuse/missing_voices/en/>.

^[10] See above note 3.

^[11] Ibid, 270.

^[12] Ibid.

^[13] Ibid, 161.

^[14] Ibid, Recommendations 5–1-5–3.

^[15] House of Representatives Standing Committee on Legal and Constitutional Affairs, Older people and the law (Canberra, 2007).

^[16] See above note 3.

^[17] M Joosten, F Vrantsidis and B Dow, Understanding Elder Abuse: A scoping study, University of Melbourne and the National Ageing Research Institute (Melbourne, 2017).

^[18] Ibid; Seniors Rights Victoria, Preventing Elder Abuse Discussion Paper (2018) <https://seniorsrights.org.au/wp-content/uploads/2018/05/Preventing-Elder-Abuse.pdf>.

^[19] Seniors Rights Victoria, Care for your assets: Money, ageing and family (2012) 11, <https://seniorsrights.org.au/wp-content/uploads/2014/03/Care-For-Your-Assets_guide-for-older-people-on-money-ageing-and-family.pdf>.

^[20] Ibid.

^[21] See above note 17.

^[22] N Ries and E Mansfield, ‘Elder abuse: the role of general practitioners in community-based screening and multidisciplinary action’, Australian Journal of General Practice, Vol. 47, 2018.

^[23] Law Council of Australia, ‘Older Persons’, The Justice Project Consultation Paper (August 2017) 4, <https://www.lawcouncil.asn.au/files/web-pdf/Justice%20Project/Consultation%20Papers/Older%20Persons.pdf>.

^[24] Justice Connect, Cohealth, La Trobe University and Victorian Legal Services Board and Commissioner, Working together: a health justice partnerships to address elder abuse – year two interim report (2017) <https://www.justiceconnect.org.au/sites/default/files/HJP_impact%20report_year%202_web_FINAL_0.pdf>.

^[25] Justice Connect, Cohealth, La Trobe University and Victorian Legal Services Board and Commissioner, Working together: a health justice partnerships to address elder abuse – first year report (2016) <https://www.justiceconnect.org.au/sites/default/files/HJP_first%20year%20report_web.pdf>.

^[26] Ibid, 8.

^[27] Ibid, 19.

^[28] Queensland Law Society, Elder Abuse (2018) <http://www.qls.com.au/For_the_community/Seniors_the_law> (accessed 9 July 2018).