Identifying and Responding to Elder Abuse

As shocking stories of abuse emerge from the Royal Commission into Aged Care, public concern over elder abuse in Australia heightens. Tomorrow, 15 June 2019 marks World Elder Abuse Awareness Day. In this article, we outline the common forms of elder abuse and how to protect yourself and others from abuse.

What is elder abuse?

The World Health Organisation defines elder abuse as “a single, or repeated act, or lack of appropriate action, within any relationship where there is an expectation of trust which causes harm or distress to an older person”.

Elder abuse can take various forms such as neglect or physical, financial, psychological and sexual harm.      

Institutional abuse

The transcripts from the Royal Commission into Aged Care reveal that there are some systemic issues with the quality of care provided to residents. The reports raise human rights concerns about the use of physical restraints and sedative drugs on residents to control their free movement and reduce the risk of injury or harm to other residents and staff.

The Royal Commission also uncovered incidents of physical abuse and neglect, including failures to properly maintain residents’ personal hygiene. The federal government is taking several measures to address these problems including introducing the Aged Care Quality Standards, a uniform set of standards for the aged care sector, from 1 July 2019. On this same date, new regulations will take effect to minimise the use of physical and chemical restraints on residents. Under these rules, aged care providers must obtain a medical assessment and informed consent of the resident (or their representative) before using physical restraints, except in the case of an emergency. With regard to chemical restraints, a medical assessment may be conducted by a medical practitioner or nurse.

Misuse of powers as attorney

While the impact of elder abuse in aged care is significant, the vast majority of older Australians do not live in aged care facilities and instead receive home-based care and support. Relatives and friends are often those who provide care to their ageing loved ones. In many cases, they are in a position of control as an attorney for financial or personal matters.

The person who makes an enduring power of attorney in favour of someone else is known as the “principal”. An attorney bears a responsibility to act in the best interests of the principal. However, we have seen many instances of attorneys acting beyond the scope of their authority by:

• Misusing the principal’s funds for their own benefit;
• Transferring the principal’s assets into their own name; and
• Borrowing money from the principal without the principal’s informed consent (or in circumstances where the principal does not have capacity to give consent).

To prevent this type of abuse, you should appoint a trusted friend or relative to act as attorney. You may appoint two or more people as joint attorneys, which would require all named attorneys to agree on any decisions made on your behalf.

For convenience or if you have mobility issues, you can make an appointment of supportive attorney by which you authorise your supportive attorney to access information from third parties (such as banks). The supportive attorney is not authorised to make decisions for you. This document will cease to have effect if you lose capacity.

Depending on your chosen attorney(s), it may be prudent to specify some limits on their powers to manage your finances or accommodation. For example, you may want to restrict your attorney’s power to sell property.

Who can you turn to?  

We recommend speaking to an experienced Wills and Estates lawyer about your enduring powers of attorney and personal circumstances, including family dynamics.  

Our Wills & Estates team can prepare enduring powers of attorney, and any other documents that may be necessary, to meet your future needs and minimise the risk of abuse by attorneys.

Where an attorney is abusing their powers, an application can be made to the Victorian Civil and Administrative Tribunal to remove the attorney and replace them with a relative or friend of the principal (or an independent person or body if appropriate). If you have any concerns about the conduct of an attorney, or your position as attorney, please contact us for advice and assistance.