Attwood Marshall Lawyers Legal Practice Director Jeff Garrett joins Robyn Hyland on Radio 4CRB to discuss the rise of elder abuse amidst the recent COVID-19 outbreak and why it is important to continue to raise awareness about this sombre issue. He also provides information to help people understand what steps they, or a loved one, can take if they are being abused.
What is elder abuse?
The most common types of elder abuse are financial abuse and physical abuse, however, elder abuse can also take the form of emotional and psychological abuse, sexual abuse, and neglect.
We see it in Will-making, where people use undue influence or unconscionable conduct in influencing their elderly parent or grandparent to draft a Will that does not truly reflect their testamentary wishes.
We also see it in cases where people move their elderly parents into nursing homes prematurely against their wishes only for those adult children to sell their parent’s home to be able to pay off their own debts or mortgage and use that money as they see fit.
Elder abuse is not one single offence but can come in so many different forms, and it is extremely alarming how widespread and underreported the issue is. In many instances, elder abuse is perpetrated by family, friends and carers who are closest to the victim.
Abuse of the elderly occurs within a complex interplay of individual, interpersonal, community and social factors. There is no single type of person who is identified most at risk, however, the Elder Abuse Prevention Unit recently reported on certain vulnerabilities that can put older Australians at risk of elder abuse. In many cases when someone is physically frail or there is a reduction in their cognitive function, this can lead to someone being more susceptible to being influenced or abused.
In cases where there is physical abuse or threatening behaviour, often the older person is scared and vulnerable and does not know who to go to for help. The only person that they may think they have got to support them and love them is their children or grandchildren, who may very well be the ones making threats or abusing them.
A large proportion of victims were widowed (40.6 per cent) and almost one-third of victims (32.5 per cent) had impaired capacity.
In contrast, reports showed that the largest group of alleged perpetrators who were being abusive were aged between 50-54 years old, and they were equally represented between males and females. Problematic behaviour of the perpetrators appeared to be long-standing with around:
- 24.4 per cent who had a history of controlling behaviour
- 16.1 per cent had a history of conflictual relationships
- 14.3 per cent had a history of aggression
- Over 11 per cent (11.3%) also had substance misuse issues.
Although these individual characteristics may not necessarily cause someone to be abusive, they certainly paint a picture of what is going on and who can be at risk of elder abuse.
The impact of COVID-19 and elder abuse
The COVID-19 pandemic has made a bad situation worse given that it has increased how isolated people are, particularly the elderly. Isolation is one of the biggest contributing factors to elder abuse. Another significant issue is that of dependency.
Financial abuse has particularly been an issue that has been exacerbated by the pandemic due to the financial impact COVID-19 has had on people’s affairs generally.
If people have been out of work or unable to earn an income due to lockdowns or government restrictions, some adult children may even be living with their parents or grandparent, or financially depending on their older relatives for money because they do not have any. These types of economic pressures increase the risk of someone making demands upon elderly loved ones which in turn has resulted in increased notifications and incidents of financial elder abuse more recently.
There are also those children that have a strong sense of entitlement to an older person’s property or possessions. This can often be due to the financial pressures experienced in their own life.
If you have an older person with diminished capacity or if they are dependent on a family member who is providing them with care, this can add to their vulnerability.
As a result of these issues, there is a greater financial dependency upon older relatives, which can lead to an increased risk of financial abuse.
The Elder Abuse Prevention Unit, which is an association that promotes the rights of older people to live free from abuse and operates the Queensland Elder Abuse Helpline, has reported an alarming 21.3 per cent spike in elder abuse reports compared to previous reporting periods state wide.
In 2020-2021 there was a total of 2,022 abuse notifications made to the Elder Abuse Helpline, with over 80 per cent of those notifications related to abuse in close or intimate relationships. This shows us that it can be the people that are closest to you that are the perpetrators of abuse and who take advantage of their vulnerable parents or grandparents.
Elder abuse in aged care
The Royal Commission into Aged Care Quality and Safety which handed its final report titled “Care, Dignity and Respect” in March last year, exposed the extent of elder abuse occurring in aged care, which included violence, neglect, abuse, and unlawful sexual contacts.
At the time, the Commission estimated that there are approximately 50 residents per week experiencing sexual abuse and over 30 per cent of residents living in aged care facilities experience neglect.
As a result, abuse in residential aged care and home care settings need a targeted response to tackle the issue.
Neglect is not just an issue in aged care, but is also a big issue in the community and in worse case scenarios can result in death. In many cases, it is the older Australians who are being cared for in private residences that can be more prone to elder abuse than those in aged care facilities.
There was a horrible example of this in 2010 when a 77-year old woman who had advanced dementia and lived in Tasmania died as a result of hypothermia. She was left to sleep in a shipping container that was being converted into living premises by her daughter and son-in-law and the shipping container was not insulated or appropriate for her to live in. In this case, it was found that the daughter “had systematically disengaged her mother from outside support and assistance”, and it was identified that this woman was severely underweight and had been inadequately cared for leading up to her death. In this same case, there was also evidence of financial abuse and emotional abuse.
What is currently being done to try to improve this issue?
We are heading into the fourth year of the National Plan to Respond to the Abuse of Older Australians 2019-2023, which is a government initiative to combat elder abuse through education, prevention, research, and the strengthening of support services and safeguards.
All governments in Australia agreed to develop the National Plan in order to try to tackle the growing problem of elder abuse.
Five key objectives have been highlighted of the national plan including:
- Empowering all older Australians to live with their preferred level of autonomy and have a say in decisions that impact their daily life
- Promoting positive views of ageing in the community
- Ensuring there’s somewhere to turn if an older person needs help to prevent neglect or abuse
- Developing a nationally consistent approach to identifying and responding to elder abuse
- Building on our understanding of abuse and its effects.
The community, professionals and individuals who interact with the elderly will play a big part in preventing elder abuse.
In regard to the aged care industry, this is in the process of being completely overhauled, with a focus on improving the quality of aged care and identifying and preventing abuse in these settings. Changes in this sector should start to take shape over the coming year. This includes establishing a regulatory system comprising accreditation and aged care standards, non-compliance provisions and the establishment of a more robust complaints scheme.
In relation to financial abuse, measures encouraging financial literacy and advocacy for the elderly together with strong regulatory regimes and industry codes of conduct that aim to encourage awareness of elder abuse among both financial institution professionals and clients, are anticipated to help put safeguards in place to help prevent elder financial abuse.
There have also been changes to state and territory-based laws governing Powers of Attorney and Guardianship which will play an important role in the prevention of elder abuse.
It is such a complex issue that will need a multi-faceted approach, but awareness plays a big role.
Protecting yourself, and your loved ones, from elder abuse
It is important for everyone to look out for their older neighbours, family members, loved ones, and look for the tell-tale signs of abuse.
Physical abuse is a police matter and should always be reported immediately to the police by calling 000.
To make a complaint or talk to someone about what you may be experiencing, elder abuse hotlines are available. If you need help any time, call 1800 ElderHelp (1800 353 374). For anyone who experiences, sees or suspects elder abuse, this helpline is free and confidential and can provide support and referrals.
If you are experiencing any form of elder abuse and have friends you trust, reach out and tell them what you are experiencing. Alternatively, you can reach out to your lawyer if you need assistance or advice. You should make sure the lawyer you contact is experienced in this complex area of law. Lawyers can step in and intervene on your behalf where necessary.
One safeguard elderly people can put in place is to ensure their legal affairs are in order and someone they trust will have their back by preparing or updating legal documents such as their Enduring Power of Attorney, Appointment of Enduring Guardian, and of course their Will. It is always best to have these documents drafted by an experienced estate planning lawyer who can help mitigate the risk of undue influence and unconscionable conduct being imposed by those around the Will-maker.
By appointing someone as your Power of Attorney, you can choose someone that you trust to manage your medical and financial affairs in the event you lose capacity to make such decisions for yourself. In cases where an elderly person doesn’t have family or friends who they trust to take on this powerful role, it might be best to appoint an independent professional who will ensure decisions are always made in their best interest.
How can Attwood Marshall Lawyers help?
We have played a leading role in protecting the interests of the elderly in our community. We have many long-standing elderly clients whom we act for to help protect their best interests and resolve any disputes that arise. Sadly, elder abuse is a growing area of concern and one that can be extremely difficult for anyone to feel comfortable to speak about and ask for help.
With one of the largest and most experienced Wills and Estates teams in Australia, we are passionate about helping our older clients put in place the documentation they need to protect themselves and their estate, while planning for the future. Ensuring you have your legal affairs in order can give you peace of mind and confidence that your wishes are upheld.
We also have a dedicated Aged Care team, led by an Accredited Aged Care Professional, who assists our clients with their needs when transitioning to aged care. This time in someone’s life involves making very difficult decisions around health, financial matters, personal matters, as well as ensuring their estate plan aligns with their care and living needs. It can be extremely helpful to get advice from someone who knows the industry inside and out and who can help ensure you make the right choice for yourself.
If you would like to speak to our team, you can free call 1800 621 071, or alternatively, you can contact Wills and Estates and Aged Care Department Manager, Donna Tolley, on direct line 07 5506 8241, email firstname.lastname@example.org or book an appointment online instantly by clicking here.
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