Brisbane’s Legal Lowdown: Elder Abuse – legal safeguards, systemic gaps, and the push for reform

Voiceover: This is Sofie Formica on 4BC.

Sofie: You won’t be winning anything either. It’ll just be bragging rights. Okay, it’s time for us this week to have a look at our Brisbane Legal Lowdown with Attwood Marshall Lawyers and World Elder Abuse Awareness Day was on Sunday, which is why we talked about it here on Afternoons on Monday.

So, we’re extending that today into the conversation. And shining a light on this issue that we know sadly affects too many older Australians, this problem with elder abuse that we have in our community, and we talked earlier in the week about how we identify it, where we look towards finding the services that might be available if they’re needed. And with this global awareness, we’re encouraging communities to better understand those warning signs of abuse and neglect and the cultural, social and economic factors that can be putting older people in the community at risk. But we’re going to unpack it from a legal perspective, and Attwood Marshall Lawyers Wills and Estates and Aged Care Partner Debbie Sage joins us once again on Afternoons. Nice to see you.

Debbie: Hello. Thank you.

Sofie: So, you recently presented at the Queensland Government’s Public Inquiry into elder abuse. You’ve got a wealth of experience and insight in this space, Debbie.

Debbie: Yes, I do. I mean, I think there’s a lot of gaps in our system at the moment that we need to address. So, I’m really glad to see that we have a parliamentary inquiry in Queensland. I’ll be interested to see what the outcome will be next year and what changes that they will put in place.

Sofie: And that we’re talking about it more often, publicly.

Debbie: Yes, absolutely. So I was one of the first to present at the parliamentary inquiry on the Gold Coast. And I submitted a written submission to them as well, giving them some research into what I’ve seen is happening around the world. You know we are quite behind in the way our laws deal with elder abuse.

I mean, there are many countries around the world that specifically address laws to combat elder abuse and abuse against the elderly and vulnerable in our community. And I think we need to do the same.

Sofie: So, the law has to also catch up with the fact that, we’ve spoken about this so many times for a variety of different reasons, we are living longer, we have older people who are living amongst us. Thus, for longer periods and in greater numbers than we have in the past.

Debbie: Yes, exactly.

Sofie: So, can you explain for those maybe who are hearing this for the first time, particularly from a legal perspective, what elder abuse is and how typically you’ve seen it show up in the community?

Debbie: Sure. So elder abuse is pretty much any type of abuse against the elderly and it can take on many forms. So, you’ll hear about different categories such as physical abuse, psychological and emotional abuse, then there’s financial abuse, neglect and even sexual abuse as well.

When you see it in the community, typically what I see is when it comes to physical abuse, you’ll see unexplained bruises or other types of injuries. With emotional abuse, it may present itself as the victim being quite withdrawn, depressed or anxious.

With financial abuse, you’ll see it as sudden changes in their financial status, missing possessions, or even unauthorised access to their bank accounts or suspicious transactions.

When it comes to neglect, it often appears as poor hygiene, malnutrition, or living in unsafe conditions.

Sofie: Yeah, we talked about those sorts of things earlier in the week and one of the things that came up, and if you have a question this afternoon in this space for Debbie, please feel free to give us a call on 133 882 or text 0499 880 882 and you’re absolutely able to do that anonymously if you choose to.

Is one of the things that I had not heard before, but I can fully understand, is this concept of inheritance in patience where there might be pressure put on the older person to liquidate assets because there might be financial pressures from their children or grandchildren, or it might be housing issues, you know, it might be that the greatest asset that’s held by the family is the house that the older person is living in. Do you see that?

Debbie: We see that a lot. And look, there’s nothing wrong with gifting your children something within your lifetime. It’s nice to see it go towards them and see the effect that it may have, rather than it happening when you pass away.

However, you know, we need to be really careful about that, especially if you’re receiving a Centrelink benefit. You know there are gifting rules, it can affect your financial position when it comes to your pension entitlements, especially for the next five years. There’s also issues with your own needs should you need aged care services in the future. You know you need to consider how much it’s going to cost you when you need more care down the track, and I think a lot of people forget that.

So, when they come in and meet with us, they seek that advice, sometimes they want to enter into loan agreements to try and protect that money as well, which is fine, but I think there’s a few different things you need to consider, not just the legal issues that arise, but also the financial implications it can have upon your future, not just theirs.

Sofie: We know that we also have a prevalence of issues with dementia, and mental health, and therefore people need to be considering this while they are of sound mind and are able to be able to put certain things in place. We’ve talked in the past about the importance of having a power of attorney, for example, in place, an enduring power of attorney, can those documents help to self-safeguard someone from abuse issues that may arise later when they may start to lose some of their faculties?

Debbie: Yes, absolutely. If it’s drafted correctly, and the person or people that you’ve appointed are suitable and trustworthy to that role, then yes, absolutely these documents can help safeguard you from abuse and exploitation.

It can also help you enforce your own decisions in the event that you have specific wishes and preferences, but the document needs to be tailored to that effect to really get the most out of the power that that document will have for you, as opposed to the person who you’re giving control to.

Sofie: Do you think that sometimes people don’t think they have enough to be bothered?

Debbie: Yes. And I think you need to consider that it’s not just about that, it’s about your personal health and lifestyle decisions. It’s about having someone to advocate for you and act in your best interest. Because if you don’t appoint someone, then you will end up down the tribunal route, and the public trustee will probably be appointed.

I’m not sure if everyone has read about this recent story in WA, where I think it was a poor lady with dementia was charged $137,000 in fees. You know this is a real thing.

This lady just had normal assets, a home and an investment property. They weren’t paying things on time. In fact, the son was managing those assets a lot of the time and they were still charging exorbitant fees. So, I think you know you need to consider what’s in your best interests, not just financially, but for your wellbeing as well.

Sofie: You know, you talked about being a part of this public inquiry into elder abuse. And I just wonder whether or not you can help us understand what some of those immediate gaps are that we have in our system that you think the government or the aged care sector should be addressing most urgently.

Debbie: Yes, there was quite a few in my report, but probably the most important that come to mind continuously, and I’m shouting this from the mountains is we need to establish a stronger reporting system and we need a more comprehensive investigative procedure.

Because right now our reporting system is not very good. I mean, we’re only touching the tip of the iceberg with the reports that we are receiving, but the reports aren’t very clear.

We’ve also got a very fragmented investigative procedure. We need everyone, all our frontline workers, to understand what that investigation should look like, how those guidelines should be to deal with the complexity of an elder abuse allegation. We just don’t have enough out there. I can’t tell you the number of victim’s families that have come to me that have said that they’ve gone to the police and the police have said I don’t know what more to do other than a welfare check.

Like, that’s pretty scary.

Sofie: Yeah. And it also isn’t just always the fact that it’s happening behind closed doors with friends or family. We unfortunately know that there are issues within the aged care sector and too often those stories become very public. And you have to wonder for every story that becomes public, how many are not?

Debbie: That’s right, exactly. Which is why I also recommended a mandatory reporting system. So, you know, it doesn’t necessarily have to be a mandatory reporting mechanism for everyone. I think it should be for people who suffer from a cognitive impairment because I think we owe them the dignity of reporting any concerns, but also just frontline workers. You know, we should be able to report the abuse, or the allegations of abuse, and know that there will be a proper procedure.

Sofie: Mary would like to have some advice on how often you think she should be updating her will, or at least checking to still see if it’s what she wants to do with her money.

Debbie: I would recommend at least every three years, however, if you’re becoming quite unwell, and your situation does change and a dramatic, substantial change happens, such as, you know, a death in the family or death of one of your loved ones who may be in your will or a substantial financial change, so, you’ve transitioned to aged care services or something has changed in your financial position. Absolutely. Review that document again.

Sofie: And Debbie, what advice would you give someone who you think may be suspecting that an older person that they know or is in their sort of circle if they think that they could be experiencing abuse in some way, what do you what do you suggest they do given that there are obviously some loopholes and some gaps in the system?

Debbie: Look, I think the first thing is to trust your instinct. If you think that there’s something going on, then there’s nothing wrong with having open communication about it. I think having a respectful, private conversation with that person, respecting their dignity, respecting their confidentiality, just letting them know that you’re here for them if there’s anything that’s going on. Checking in with them, of course, and then perhaps even just telling them what you’ve observed. Because, you know, it may be taken out of context. It may be nothing to be concerned about, but then at the same time, maybe there is something to be concerned about, but that person doesn’t see it in that way. Giving them the opportunity to reflect on that.

Perhaps giving them the opportunity to consider and educate them on what perhaps you may know about elder abuse and what’s out there to get some support. Obviously, if that person lacks capacity, then I think it needs to go higher than that. It should be reported to the police. There’s the office of Public Guardian who will investigate issues of risk for someone who’s lost capacity.

And then we’ve also got those elder abuse helplines out there that you can call and of course seeking legal advice.

Sofie: Yeah. You know, I think it’s obviously, you can’t help but have this conversation and know that that is harder for people who live in regional and rural areas who might already be physically isolated and having themselves face these kind of dilemmas. And that if it is somebody within the family, there’s that added risk of the complexity of what if things get worse and not better.

It’s a really tricky one.

Debbie: It really is.

Sofie: And I think that’s why I’m pleased to have this platform to have this conversation because if all it does is either let somebody listen to their intuition or know that there are services that are available for them to reach out, that they might look at their situation and go, this doesn’t feel right.

And often it is, it’s an intuition more than anything else and then you can go and find the legal parameters and the services that are available. But I think intuitively most of us know if something’s off.

Debbie: Exactly, you know, I think part of what I’d also like to see moving forward is implementing stronger legal protections for our elderly.

You know, I think we should have a specific criminalization of elder abuse. That needs to happen. There’s countries all around the world that do it. The ACT are the first to do it in Australia since April 2021.

I think we need to keep up. We need to look at how the rest of the world are handling elder abuse, and I think we need to implement something so that the community understand it.

Sofie: Yeah, absolutely. Thank you so much, as always for your time and your expertise. Debbie Sage is the Attwood Marshall Wills and Estates and Aged Care Partner. And you can always reach out to Debbie through us. As you know, they’ve now jumped on board Afternoons and we do this conversation with the team from Attwood Marshall Lawyers. You can always send through questions to us as well that we’re happy to send on to them if they don’t get answered during our Brisbane Afternoons Legal Lowdown conversation. Thanks, Debbie

Debbie: Thank you so much.