Elder Abuse

Contributed by Katie Binstock, McInnes Wilson Lawyers and current to March 2018

Elder abuse, as described by the World Health Organisation, is ‘a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person’.

The Australian Network for the Prevention of Elder Abuse defined elder abuse as ‘any act occurring within a relationship where there is an implication of trust, which results in harm to an older person. Abuse can be physical, sexual, financial, psychological, social and/or neglect.’

It is relevant that all definitions of elder abuse state that the abuse occurs in a relationship of trust.

There is no accepted age at which a person becomes an ‘elder’. The Australian Concise Oxford Dictionary definition of elder includes ‘persons of greater age or seniority’, ‘persons venerable because of age’ and ‘a person advanced in life’. The Federal Government’s 2007 report Older People and the Law uses the term ‘older Australians’ when referring to persons aged 65 years or over . It has also been suggested that Aboriginal and Torres Strait Islander people can be considered ‘elder’ at a younger age.

There are a number of reports and studies addressing the prevalence of elder abuse in Australia and internationally. Elder abuse largely occurs within families and adult children are the most common perpetrators. The World Health Organization has estimated that the rate of elder abuse in high and middle-income countries ranges from 2% to 14%. According to the ACT Legislative Assembly, people aged 60 years and over in the ACT are expected to increase from 15.8% in 2010 to 19.6% by 2020 and 22% by 2030. Australia’s population is aging and growing. As a result elder abuse is expected to increase.

Elder abuse is thought to be largely underreported. This might be because:

• few people are aware of their rights;
• pursuing civil legal remedies through litigation requires an older person to have the funds to pay for legal fees;
• the special needs of the complaint means there is an inability to access support, including physically or mental inability to report;
• older persons may be reluctant to implicate family members in legal processes through initiating civil action or reporting criminal behaviour; particularly where a person is dependent upon family members for accommodation, care and support;
• abuse brings feelings of shame and guilt;
• there may be a fear of retribution;
• coroners are not looking for elder abuse being a possible cause or contributor to death;
• the elder person relies on their family for care and support and reporting may result in collateral damage such as guardianship or institutionalisation and removal of autonomy;
• privacy law means a lack of sharing between organisations;
• people do not want to draw attention to their family or implicate family members.

Types of abuse and signs of abuse

Elder abuse can take various forms, such as physical abuse, psychological or emotional abuse, financial abuse, sexual abuse and neglect. Psychological and financial are the two most common types of abuse.

Psychological abuse can include:

• verbal abuse, name-calling, bullying and harassment;
• treating an older person like a child;
• threatening to withdraw affection;
• threatening to put them in a nursing home; and
• stopping an older person from seeing family and friends.

Signs of psychological abuse include withdrawal, paranoia and anxiety.

Financial abuse can include:

• incurring bills for which an older person is responsible;
• stealing money or goods;
• abusing power of attorney arrangements;
• refusing to repay a loan;
• living with someone without helping to pay for expenses;
• failing to care for someone after agreeing to do so in exchange for money or property; and
• forcing someone to sign a will, contract or power of attorney document.

Signs of financial abuse include:

• disappearing belongings;
• inability to pay bills;
• significant withdrawals of cash;
• changes to a Will;
• stock piling bills;
• no food in fridge;
• cancelling community services.

Physical and sexual abuse can include:

• pushing, shoving and rough handling; and
• sexual assault.

Neglect includes failing to provide someone with such things as food, shelter or medical care.

Who is at risk and how do you prevent abuse?

Some risk factors include:

• social isolation because of language, dependency on family or cultural issues;
• having one carer who suffers ‘carer fatigue’;
• having diminished capacity and, therefore, being unable to advocate;
• being part of a dysfunctional family; and
• having a limited understanding of financial matters.

Abuse can be prevented by:

• seeking legal advice from qualified lawyers when doing Enduring Powers of Attorney (who can assist people to appoint trustworthy and honest Attorneys and include safeguards in the document);
• doing a Will (earlier rather than later) so that there can be no question of influence;
• seeking independent legal advice when giving loans / gifts or entering into family care arrangements and document the arrangements;
• seeking independent legal advice when signing significant documents- (i.e. property Transfers);
• having regular engagement with friends, family and neighbours;
• staying socially connected and active in community groups; and
• finding an advocate, for example:
  • an Attorney;
  • ATACAS (ACT Disability, Aged, and Carer Advocacy Service);
  • Centrelink financial services;
  • ACT Office for Women / Women’s Legal Centre / Canberra Community Law;
  • Aged Care Complaints Commissioner;
  • ACT Human Rights Commission;
  • Abuse Prevention Referral Line (APRIL);
  • Legal Aid;
  • Police.

Current state of the law in the ACT

There are no specific laws dealing with elder abuse in the ACT.

There are some Federal laws which address elder abuse. For example, under the Aged Care Act 1997 (Cth) approved residential aged care providers are obliged to report alleged or suspected assaults in aged care facilities funded by the Commonwealth to the police and to the Commonwealth Department of Health and Ageing. The complaint must relate to an approved provider’s responsibilities under the Act or the Aged Care Principles.

Legislation and common law provide some protection against certain forms of elder abuse.

Equity, through the mechanism of the constructive trust, can provide relief in some circumstances to vulnerable older persons. Relevant equitable remedies include constructive trust, account of profits, tracing, rescission and specific performance (see, for example, Johnson v Buttress (1936)56 CLR 113 and Commercial Bank of Australia v Amadio [1983] HCA 14; (1983) 151 CLR 447).

Actions for damages are available in tort law for injury suffered as a result of abusive conduct.

Elder abuse may amount to offences against the person (such as assault, sexual assault, stalking and negligent manslaughter) and offences against property (such as stealing and fraud).

While these offences are applicable to the general population regardless of the age of the victim, they are often aggravated due to age. That is, the circumstance of an older person or a person with impaired capacity as the victim tends to be an aggravating factor which the courts take into account when sentencing.

There is no discrete offence in the ACT. In some jurisdictions neglect is addressed in criminal law. See, for example, the Criminal Code 1899 (Qld) offences of ‘duty to provide necessaries’ and ‘failure to supply necessaries’ (see sections 285, 290 and 324). These offences impose a duty on someone who has charge of another person who is unable to provide themselves with the ‘necessaries of life’ to provide care.

Domestic violence legislation in some jurisdictions also makes orders available for abused persons within family relationships and informal care relationships.

Approach to Elder Abuse in the ACT

While there are currently no laws in the ACT specifically relating to elder abuse, there are some protections available in the following legislations:

• Human Rights Act 2004;
• Human Rights Commission Act 2005;
• Discrimination Act 1991;
• Domestic Violence and Protection Orders Act 2008;
• Guardianship and Management of Property Act 1991;
• Powers of Attorney Act 2006;
• Public Trustee Act 1985;
• Public Advocate Act 2005;
• Legal Aid Act 1997;
• Health Records (Privacy and Access) Act 1997;
• Crimes Act 1900;
• Victims of Crime Act 1994;
• ACT Mental Health (Treatment and Care) Act 1994;
• Health Act 1993;
• Health Professionals Act 2004; and
• Emergencies Act 2004.

Key ACT agencies with statutory responsibilities include:

• Public Advocate of the ACT;
• Public Trustee for the ACT;
• ACT Civil and Administrative Tribunal (Guardianship Division);
• Health Services Commissioner;
• Aged Care Complaints Scheme;
• ACT Policing; and
• Victims of Crime Coordinator.

The ACT Legislative Assembly’s response to elder abuse has been at its own initiative.

• In 2001 the ACT Standing Committee for Health and Community Care conducted an inquiry into elder abuse. In response the Assembly allocated funding to develop a program to respond to elder abuse.
• The Elder Abuse Prevention Project was funded to provide a multifaceted approach to addressing elder abuse in the ACT and provided a telephone information and referral service, a community awareness media campaign and a Training Manual and Information Kit for professionals.
• In 2008 the ACT Elder Abuse Prevention Program was reviewed.
• The ACT Strategic Plan for Positive Ageing 2010-2014 committed to reducing elder abuse.
• In February 2012 the ACT Elder Abuse Prevention Program Policy was released.
  • The ACT Office for Ageing within the Community Services Directorate is responsible for the governance, coordination and strategic direction of the ACT Elder Abuse Prevention Program. The Office for Ageing is advised in this role by the Elder Abuse Prevention Network and the ACT Ministerial Advisory Council on Ageing (MACA).
  • MACA consists of up to 12 representatives appointed by the Minister for Ageing to assist the ACT Government to develop and implement positive ageing policies which advance the status and interests of older people in the ACT. MACA is responsible for monitoring the effectiveness of the ACT Elder Abuse Prevention Program and providing high level advice to the Minister for Ageing. MACA is represented on the Elder Abuse Prevention Network.
  • The Elder Abuse Prevention Network provides strategic advice on systemic issues relating to elder abuse and the co-ordination of services that support older people. It does not respond to individual cases of abuse. The Network consists of representatives of Government and non-government agencies who have a role in preventing abuse and neglect of older people in the ACT. The Network is guided by a Terms of Reference and managed by the Office for Ageing.