World Elder Abuse Awareness Day is commemorated on 15 June each year, and shines the spotlight on issues around elder abuse – not just physical abuse, psychological abuse, or neglect, but also financial abuse, explains Attwood Marshall Lawyers Wills & Estates Senior Associate and Accredited Aged Care Professional, Debbie Sage.
Introduction
Elder abuse occurs when a trusted person (such as a friend, family member or carer) takes advantage of the trust instilled in them and causes harm to the older person. The abuse can take many forms, and sometimes the trusted person may not recognise that their actions are effectively a form of abuse. For example, there are instances where families use an Enduring Power of Attorney to make financial decisions that benefit themselves, rather than focussing on the best interests of the older person. You might hear this referred to as “inheritance impatience”.
Elder financial abuse is illegal and can involve the mismanagement or improper use of the older person’s finances. This includes stealing money or possessions, as well as controlling the older person’s money without the permission or consent of the older person.
Elder neglect is also one of the most common forms of elder abuse, which involves the failure of a carer to provide basic necessities such as food, a comfortable living space, and/or medical care.
Elder Abuse – a hidden and underreported issue
There are some common features across elder abuse, family violence, and sexual assault. Sadly, these incidents are in most cases hidden and underreported. There is often a source of shame and embarrassment to victims of elder abuse and it can be difficult for people to identify the harm being done to them and understand how to get help to put a stop to it. Often, an older person also feels protective of their adult children who may be the ones mistreating or abusing them.
Research completed by the National Ageing Research Institute (NARI), which involved a small qualitative study, highlighted the complexity of elder abuse, and the need for a range of options and interventions at all stages, including mediation and counselling. It showed that victims of elder abuse still held strong values around restoring relationships and keeping the peace.
The study found victims of elder abuse wanted recompense and help for the perpetrator. There were 28 women participants between the ages of 62-89 who had been abused. Participants reported a range of complex emotions, including self-blame, sadness, shame, fear, and ambivalence.
Many wanted to be free from abuse and gain recompense for financial losses. However, the victims also expressed concern for the perpetrator, who in many cases were adult children of the abused, who had psycho-social problems arising from issues such as gambling, substance addiction, or mental illness. Where this was the case, participants also wanted to ensure that their family member received appropriate treatment and support.
Seniors Rights Victoria provides an advice call service to older people who have experienced elder abuse. Below are the alarming statistics reported by Seniors Rights Victoria (SRV) in their “Seven Years of Elder Abuse Data in Victoria” report released in August 2020:
- 91% of elder abuse perpetrators were family members
- 72% of older people who reached out for advice were older women
- Financial and social abuse has increased substantially over the past 7 years.
- 63% of callers experienced psychological abuse
- 62% of callers experienced financial abuse
- 35% of perpetrators were reportedly experiencing drug, alcohol of gambling issues
- 31% of perpetrators were reportedly experiencing mental health issues
Being prepared – elder abuse and an ageing population
It is important for all of us to play our part in identifying if someone is being mistreated or abused. It is also imperative for all of us to think about who would step in and make decisions for us if we lose capacity to make decisions on our own. Life can change quickly. If we lose capacity and need help, who would we trust to support us to make decisions on our behalf?
In 2021, there was an estimated 472,000 Australians living with dementia. The increasing incidence of dementia and cognitive decline as we age, makes it particularly important that everyone understand why they need an Enduring Power of Attorney, and why they should carefully consider who to appoint to that role. It is never too early to start the conversation and set up appropriate arrangements to ensure you protect yourself.
Why is it so important to make an Enduring Power of Attorney?
If you consider the concept of someone making decisions for you, you could be forgiven for feeling uneasy and overwhelmed by the thought. However, having a valid and formally appointed decision-maker is important to protect yourself in case the unexpected happens.
Making an Enduring Power of Attorney gives you the opportunity to appoint who you want as your voice and advocate. Importantly, your attorney is the person who will be there when you may not be capable of making normal life decisions for yourself. This can include paying your bills, looking after your children, dealing with the bank when your mortgage is due or just simply discussing your next tax return with the accountant.
The most valuable part of taking the step to put an Enduring Power of Attorney in place is the fact that you choose who you want to be your decision-maker. It is not only the choice of who will be your decision-maker that taking this step offers, it is also the valuable consideration of proper advice about what you can and can’t do with the power you give to your attorney. You can even customise the power you give your attorney or attorneys. One of the great things about getting proper legal advice about putting these documents in place is that an experienced lawyer has generally seen what can go wrong if you do not have these documents, or appoint the wrong person, and your lawyer can give you real life examples of and provide you with the best options to help you mitigate those risks.
Contrary to public belief, people close to you do not automatically have legal authority to manage your affairs if you are out of town or have lost the mental capacity to manage them yourself. The need for formalities for decision-makers and personal representatives has seen a significant increase over the past few years and informal arrangements with banks and other groups that may have once been acceptable, are no longer.
If you do not have an Enduring Power of Attorney and you need a formal decision-maker, it can be overwhelming, stressful, and incredibly heart-wrenching for you and your loved ones if you do not have one appointed. Where there is no valid Enduring Power of Attorney and you lack the capacity to make decisions for yourself, your loved ones will need to apply to the Tribunal in your State to have a formal decision-maker appointed. The person appointed may be your family member or a very close friend, but that is not always the case. In many cases the Court or Tribunal appoint The Public Trustee who then steps in to make decisions on your behalf and manage your affairs. With years of allegations and public outcry after many people have suffered as a result of wrongly putting their trust in the Public Trustee, this is something we urge you not to leave to chance.
Your Enduring Power of Attorney cannot and should not be the same as anyone else’s because it’s about you and no one else. It is about your unique financial circumstances and who you believe knows best to manage those responsibilities. It’s also about your personal and health circumstances and who will always make decisions for you with your best interests in mind. Only you know who that person is and how you want them to act. Do not leave that decision up to a Court or Tribunal, or the Public Trustee.
Are you experiencing elder abuse?
If you experience, witness, or suspect elder abuse, you must act swiftly and talk to someone you can trust.
There are certain factors that can put elder’s at risk of abuse. These can include:
- If the older person’s carer is experiencing high levels of stress or financial pressure
- If the older person is unable to stop or report abuse due to cognitive impairment, or physical limitations.
- If the older person is isolated. The COVID-19 pandemic and lockdowns worsened the risk of elder abuse with the elderly facing increased social isolation.
If you are unsure if someone is taking advantage of you or if you are being abused, start by asking yourself:
- Am I treated with respect by my family and friends?
- Do I know how my money is being spent?
- Do I decide what happens in my home?
- Are the decisions being made about my life in my best interest?
- Does my Will reflect my own wishes?
- Do I know where my medication is kept?
If you answered “no” to any of these questions, you may wish to talk to someone you can trust. You can reach out to 1800ElderHelp (1800 353 374) at any time, or speak to a trusted family member, friend, or your doctor or lawyer to get assistance.
1800 ELDERHelp (1800 353 374) is the national elder abuse help line. By calling this number, you will automatically be directed to your state or territory phone line service.
If you require assistance in an emergency or life-threatening situation, please call 000 immediately.
Getting trusted advice
Unfortunately, our federal system of government means that responses to elder abuse are complicated as they are contained within multiple layers of legislative frameworks across health, ageing and law at Commonwealth and State levels. Elder abuse is distressing and finding someone who understands the sensitive nature of the issue can help you in deciding what to do next.
Putting in place the appropriate legal documents to protect your interests is a really good place to start. If you need to review your Will, Enduring Power of Attorney, or any other estate planning documents, please call our friendly team any time on 1800 621 071.
Atwood Marshall is a leading Wills and estates and elder law firm with one of the largest and most experienced Wills and estate planning teams in Australia.
If you would like further advice, please contact our Wills & Estates Department Manager, Donna Tolley on direct line 07 5506 8241, or email dtolley@attwoodmarshall.com.au
Take the time on World Elder Abuse Awareness Day to think about your family situation and identify the risks and signs of elder abuse.
Other helpful services:
- Relationships Australia – Elder Abuse Prevention and Support Service: 1300 364 277. Relationships Australia offers a free case management service providing assistance to those at risk or experiencing elder abuse.
- Elder Abuse Helpline – 1300 651 192. All calls to this helpline are confidential and offers you the time to talk things over. They can also provide you with a list of contacts of other agencies that may be able to assist you with your situation.
- Aged and Disability Advocates Australia – 1800 818 338. ADA Australia provides information and individual advocacy support for older people living in residential care who are experiencing or at risk of elder abuse.
- Older Persons Advocacy Network (OPAN) – 1800 237 981. OPAN aims to provide an immediate response to elder abuse within aged care and to prospective users of aged care services.
- 1800RESPECT (1800 737 732) – 24-hour support to people impacted by sexual assault, domestic or family violence and abuse
- Lifeline (13 11 14) – Support for anyone experiencing a personal crisis or thinking about suicide.
Read more:
COVID-19 causes increase in elder abuse cases as social distancing creates a new degree of isolation
Enduring Power of Attorney – one of the most crucial and powerful documents you can create in your lifetime
A Britney-sized battle: What can be done when Attorneys or our decision-makers behave badly?
The Final Report – The Royal Commission into Aged Care Quality and Safety
