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World Elder Abuse Awareness Day

World Elder Abuse Awareness Day

By Katie Miller

Human Rights Justice 

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World Elder Abuse Awareness Day is held on 15 June each year. It’s a good opportunity for lawyers to reflect on the challenges we face in acting for older clients and those who care for them. Bill O’Shea, a former president of the LIV, a current member of the Elder Law Section and General Counsel for Alfred Health, shares his insights on the financial abuse of elderly people.

Elder abuse – What every solicitor needs to know

I became aware of the risk and extent of elder abuse in my role as General Counsel for Alfred Health. My responsibilities include providing legal services to Caulfield Hospital, a major centre for older patients in Melbourne.

Abuse can take many forms but I am most often consulted on financial abuse. Social workers often come to me concerned about the vulnerability of their patients to financial exploitation. These patients are often asset rich but cash poor. The family home has become an asset worth fighting over. They are therefore vulnerable to unscrupulous “carers”, who can be close family members, friends, neighbours or even professional advisors.

We have had cases where a relative turns up unannounced with a solicitor armed with documents for an elderly patient to sign. Staff are unsure what to do. They suspect their patient lacks the understanding required to sign, yet they can feel intimidated by insistent visitors. Staff can apply to VCAT for guardianship or administration orders but it takes time. It’s not clear how far their duty of care as health professionals extends to protecting patients from financial abuse.

Pro bono legal clinics

Seniors Rights Victoria has established pro bono legal clinics at various locations around Victoria. They have been a great success, assisting hundreds of elderly clients each year. One operates at Caulfield Hospital on a fortnightly basis. However, they are not open around the clock and therefore in many cases, staff are on their own when they face unscrupulous visitors.

Issues for lawyers

As lawyers we are obliged to act in the best interests of our clients and follow their instructions, but important questions can arise when acting for an elderly client:

  • What if we suspect our client lacks decision-making capacity or is being overborne by greedy relatives?
  • Do we draw an enduring financial power of attorney in favour of a relative who seems keen to get their hands on our client’s assets?
  • What if our client is the greedy relative? Do we continue to accept instructions?
  • What do we do when we suspect a third party of having an undue influence on our client – should we notify our client’s relatives?

Useful resources

Fortunately there are resources to assist practitioners to navigate these tricky issues.

Problems faced by carers

Those who care for elderly people who lack capacity in financial matters often feel helpless when they witness elder abuse. Some will have the courage and workplace support to speak up. But for many, there is neither support nor any effective legal remedy available even if they did object.
Section 6 of the Family Violence Protection Act 2008 (Vic) includes economic abuse as a category of family violence. But that often requires the victim to bring the abuse to the attention of the police. Many victims of elder abuse, including those with capacity, are understandably afraid that their relationship with their children will be severed if they object.

Those without capacity will often have little or no idea that abuse is occurring, let alone what they can do about it. The law needs to strengthen the remedies available to those who suspect elder abuse to be occurring.

Law reform and mandatory reporting

World Elder Abuse Awareness Day is an opportunity to think about possible law reform to protect older people in Victoria.

A person with capacity should have the personal autonomy to make whatever decision they like – including bad decisions or decisions we would not make. But if a person lacks capacity and is in need of protection from elder abuse, should there be a mandatory reporting obligation imposed on health professionals looking after them?

Young people under the age of eighteen are deemed to lack legal capacity and have the protection of mandatory reporting legislation. Sections 182 and 184 of the Children, Youth and Families Act 2005 (Vic) impose a mandatory obligation on certain professionals to notify the Department of Human Services Child Protection Unit where they form the view that a child is in need of protection. Yet no such mandatory reporting obligation is imposed on health professionals caring for an older person who lacks capacity and needs protection from elder abuse.

Let’s hope World Elder Abuse Awareness Day 2015 will encourage our legislators to consider greater protection for victims of elder abuse in Victoria.

Katie Miller, 2015 LIV President


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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