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Move to protect the elderly

Move to protect the elderly

By Australian Law Reform Commission

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Move to protect elderly

The ALRC recommends a national plan to help stop financial and physical elder abuse.

Elder abuse can be physical, sexual, psychological or financial. Reports suggest the most common form of abuse is financial and is perpetrated by family members. Elder abuse is an area of growing community concern, and the subject of an Australian Law Reform Commission (ALRC) Report, "Elder abuse – A national legal response" (ALRC Report 131).

The report considers Commonwealth laws and legal frameworks and how they might better protect older persons from misuse or abuse, and safeguard their autonomy, and includes 43 recommendations for law reform. It draws and builds on recent reforms in Victoria in key areas, particularly in relation to enduring appointments and tribunal jurisdiction to resolve disputes relating to family agreements.

The principles of dignity and autonomy; and protection and safeguarding frame the recommendations of this report. Where possible, the ALRC sought to make recommendations that both uphold autonomy and provide protection from harm, particularly in considering whether and how to intervene to protect a person from abuse.

  • The overall effect of the recommendations will be:
  • improved responses to elder abuse in residential aged care
  • enhanced employment screening of care workers
  • greater scrutiny regarding the use of restrictive practices in aged care
  • building trust and confidence in enduring documents as important advanced planning tools
  • protecting older people when "assets for care" arrangements go wrong
  • banks and financial institutions protecting vulnerable customers from abuse
  • better succession planning across the self-managed superannuation sector
  • adult safeguarding regimes protecting and supporting at-risk adults.

Enduring appointments

Enduring appointments are important tools that allow people to choose who will make decisions for them. However, they may also facilitate abuse by the decision maker. The recommendations seek to build trust and confidence in the use of these documents, and draw on recent reforms introduced in Victoria, particularly in relation to additional safeguards such as enhanced witnessing requirements and tribunal jurisdiction to order compensation. The key recommendations in this area are focused on adopting nationally consistent safeguards, giving tribunals jurisdiction to award compensation when duties are breached and establishing a national online register.

Family agreements

Family agreements generally involve an older person transferring the title to their home, or proceeds from its sale, to an adult child in exchange for ongoing care, support and housing. These "assets for care" arrangements are typically oral and made without legal advice. This can lead to serious consequences for the older person if the promise of ongoing care is not fulfilled or the relationship breaks down. The older person may even be left without a place to live. The ALRC has recommended that tribunals be given jurisdiction over disputes within families with respect to these arrangements. This recommendation builds on the Victorian approach, where VCAT can resolve disputes between co-owners of land and goods. Tribunals provide a low cost and less formal forum for resolving such disputes.

The ALRC also recommends that the Social Security Act 1991 (Cth) be amended to require that assets for care agreements (which give what is described as a granny flat interest) be expressed in writing, for the purpose of calculating the age pension.

Aged care

The ALRC recommended reforms to safeguard against abuse in aged care including: establishing a serious incident response scheme in aged care legislation; reforms relating to the suitability of people working in aged care – enhanced employment screening processes, and ensuring that unregistered staff are subject to the proposed National Code of Conduct for Health Care Workers; regulating the use of restrictive practices in aged care; and national guidelines for the community visitors scheme regarding abuse and neglect of care recipients.

A national response

The ALRC also made recommendations for reform of other federal, state and territory laws, including in relation to banking and superannuation, social security, and guardianship and financial administration.

The recommendations aim to achieve a nationally consistent response to elder abuse. To further realise this national response, the ALRC has recommended that a national plan to combat elder abuse be developed, a key plank of which is further research to improve the evidence base about elder abuse. Elder Abuse – A National Legal Response (ALRC Report 131) is available at www.alrc.gov.au/publications. 

This column is provided by the Australian Law Reform Commission. See www.alrc.gov.au/publications.

Snapshot

  • The ALRC report on elder abuse was tabled 14 June 2017.
  • 43 law reform recommendations are included.
  • The report is available at www.alrc.gov.au/publications.

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Disclaimer: Views expressed by commentators are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV). No responsibility is accepted by the LIV for the accuracy of information contained in the comments and the LIV expressly disclaims any liability for, with respect to or arising from any such views.

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