1. Elder Abuse and the Law Marbury Chambers CPD Conference 31March 2019
PRESENTED BY
Rosalie Gibson

2. Topics for Presentation
DEFINITION of Elder Abuse
SRS INVOLVEMENT SRS final report (2018)
RECOMMENDATIONS ALRC Report 131 (2017)
RESPONSE Cth Attorney General’s Report (Mar, 2019)

3. DEFINITION
Elder Abuse

4. There are two definitions of elder abuse used in Australia:
1. The World Health Organisation defines elder abuse as: “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”
Elder abuse can be of various forms: physical, psychological/ emotional, sexual, financial or simply reflect intentional or unintentional neglect … Elder abuse is a violation of human rights and a significant cause of injury, illness, lost productivity, isolation and despair (World Health Organisation, Toronto Declaration on the Global Prevention of Elder Abuse 2002).
Abuse does not have to be physical –misusing an older person’s money or threatening to restrict access to friends and family can cause immeasurable and lasting damage to an individual and their family.
World Health Organisation, Toronto Declaration on the Global Prevention of Elder Abuse 2002

5. There are two definitions of elder abuse used in Australia:
2. The Australian Network for the Prevention of Elder Abuse: “Any act occurring within a relationship where there is an implication of trust, which results in harm to an older person. Abuse may be physical, sexual, financial, psychological, social and/or neglect”
Any act occurring within a relationship where there is an implication of trust, which results in harm to an older person. Abuse may be physical, sexual, financial, psychological, social and/or neglect (Australian Network for the Prevention of Elder Abuse, 1999).
Australian Network for the Prevention of Elder Abuse, 1999

6. Abuse of Older People
The abuse of older Australians is complex and multi–faceted
Abuse occurs in all cultures and across all levels of society
World health Organization Elder Abuse Fact Sheet January 2018
Elder abuse: Understanding Issues, Frameworks and Responses, 2015
Australian Longitudinal Study on Women’s Health 2014
WHO estimates one in six older people have experienced abuse in the past year.
(2) The available evidence suggests that prevalence varies across abuse types with financial and psychological abuse being the most common types of abuse reported
(3) One Australian study suggests that neglect could be as high as 20% among women in the older age group

7. SRS INVOLVEMENT
SRS final report (2018)

8. Seniors Rights Service Conference
We hosted Australia’s 5th National Elder Abuse Conference in Sydney, February 2018
The conference was attended by 550 delegates who both contributed to the drafting of and endorsed a final conference statement. “ Our call to action to all governments in Australia. There is no excuse to Not act nationally NOW against elder abuse.” Around 70 high-level stakeholders participated in a community-led strategy forum on the third day of the conference. Participants at the forum were advocates for older people, solicitors, special population cohorts (CALD and LGBTIQ) plus representatives from police, the banking sector, the aged care sector and government departments.

9. Recommendations to Government
“There is no excuse not to act nationally NOW to address the abuse of older people in Australia”
All governments within Australia should act on the endorsed statement from the 5th National Elder Abuse Conference and call to action and come together to create and fully resource the strong, effective, nationally consistent and accountable change needed to:
1.Create respectful cultures that value older people within our diverse country and communities
2. Deliver early intervention and empower older people
3. Support and safeguard those older persons experiencing abuse
4. Involve older people and all the key stakeholders in developing a National Plan to address elder abuse to ensure older people experience dignity, and their rights and personal well-being as a daily way of life
SRS Abuse of Older People: A community Response Final Report 2018

10. Abuse of older people is a complex problem
In Australia we don’t yet have a detailed picture of how extensive the problem is for older people
It has been estimates that as many as 185,000 older people in Australia experience some form of abuse or neglect each year
Abuse can happen both inside and outside the home. It can also involve those we love and trust. Financial abuse is reported as being the most prevalent form.
SRS Abuse of Older People: A community Response Final Report 2018

11. Five commonly recognised forms of abuse of older people
Financial abuse
Psychological or emotional abuse
Neglect
Physical abuse
Sexual abuse
Financial abuse is the misuse or theft of an older person’s money or assets. For instance, using finances without permission. Using a legal document such as EPOA for purposes outside what it was originally signed for; withholding care for financial gain, or selling or transferring property against a person’s wishes.
Psych or emotional abuse is an act that causes pain or injury to an older person; insulting or threatening a person; acts of humiliation or disrespect and controlling behaviours including confining or isolating a person.
Neglect- failure to meet a person’s basic needs such as food, housing and essential medical care
Physical- acts can include hitting, pushing or kicking; inappropriate use of drugs (administered) and physical restraints
Sexual - any sexual behaviour without a person’s consent.
SRS Abuse of Older People: A community Response Final Report 2018

12. RECOMMENDATIONS
ALRC Report 131 (2017)

13. All Australian governments should endorse an Australian definition
Australian definition of Elder Abuse should:
develop an agreed and fully funded National Plan that works to eradicate elder abuse
The NP is to build an Evidence Base to better inform policy and service responses over the next four years and into the future.

14. All Australian governments should endorse an Australian definition
Australian definition of Elder Abuse should:
develop an agreed and fully funded National Plan that works to eradicate elder abuse
achieve an agreement by all governments to act against the abuse of older people
Abuse of older people demands an interdisciplinary approach encompassing law reform, social and cultural disciplines and any relevant government and non-government departments.

15. All Australian governments should endorse an Australian definition
Australian definition of Elder Abuse should:
develop an agreed and fully funded National Plan that works to eradicate elder abuse
achieve an agreement by all governments to act against the abuse of older people
gain commitment and support from the Council of Australian Governments (COAG) for the national plan needs

16. All Australian governments should endorse an Australian definition
Australian definition of Elder Abuse should:
develop an agreed and fully funded National Plan that works to eradicate elder abuse
achieve an agreement by all governments to act against the abuse of older people
gain commitment and support from the Council of Australian Governments (COAG) for the national plan needs
provide a framework that must be rights-based
Developing response to elder abuse through a rights- based lens is not entirely straightforward.
As one academic notes: The challenge for lawyers, advocates and policymakers is that the human rights of older persons have not yet been well defined in international human rights law, and governments (national, regional and local) are presently developing law and policy in the absence of a specific treaty with binding obligations to respect and protect the rights of older people.
Further the UN Principles for older persons do not speak of rights at all, although they are framed around five core themes reflective of a human rights-based approach ; independence, participation, care, self-fulfilment and dignity ( Lacey ALRC (131) 49)

17. Overview of ALRC Report
National Plan to combat elder abuse
Aged Care
Enduring appointments
Family Agreements
Superannuation
Wills
Banking
Guardianship and Administration
Health and National Disability Insurance Scheme
Social Security
Criminal Justice Responses
For the purpose of this presentation I will restrict my talk to Enduring Appointments, Family Agreements, Superannuation, Wills and Banking
Elder Abuse- A National Legal Response (ALRC Report 131)

18. Enduring Appointments
Powers of Attorney
Enduring Guardianship
Enduring Appointments
Enduring powers of attorney and enduring guardianship ( together referred to as enduring documents ), we know that these appointments have been subject to abuse by those appointed as decision makers
Reforms include:
adopting nationally consistent safeguards;
giving tribunals jurisdiction to award compensation when duties are breached ( taking it away from the Supreme Court)
and establishing a national online register.

19. Family Agreements Assets for Care Family agreements:
Some family agreements involve an older person transferring the title to their home or proceeds of sale or other assets to an adult child in exchange for ongoing care, support and housing. These ‘assets for care’ arrangements are typically made without legal advice and are often not put in writing. Serious consequences can occur for the older person if the promise is not fulfilled, or the relationship breaks down. The older person may even be left without a place to live.
The ALRC recommends that tribunals be given jurisdiction over disputes within families with respect to these arrangements – low cost and less formal forum for resolving disputes.
The ALRC also recommends that the Social Security Act (Cth) be amended to require that assets for care agreements ( granny flat interest) be expressed in writing for the purpose of calculating the Age Pension.

20. Superannuation Self managed super funds Superannuation
A significant proportion of the wealth of older people is held in superannuation funds. Elder abuse may include using deception, threats or violence to coerce someone
to contribute, withdraw or transfer superannuation funds, for the benefit of the abuser. Improperly influencing superannuation investment decisions might also be abuse.
The recommendations in relation to SMSF’s are designed to :
(1) better facilitate the process for appointing a person’s enduring attorney as trustee/director of their SMSF in the event of a legal disability;
(2) improve planning for a potential legal disability as part of the operating standards of an SMSF; and
(3) ensure the Australian Taxation Office is notified when an enduring attorney has taken over as trustee/director of the SMSF following the principal suffering a legal disability.

21. Wills Probate matters Undue influence Testamentary matters Wills
The Law Council of Australia, together with state and territory law societies, should develop national best practice guidelines for legal practitioners in relation to the preparation and execution of wills and other advance planning documents to ensure they provide thorough coverage of matters such as:
(a) elder abuse in probate matters;
(b) common risk factors associated with undue influence;
(c) the importance of taking detailed instructions from the person alone;
(d) the need to keep detailed file notes and make inquiries regarding previous wills and advance planning documents; and
(e) the importance of ensuring that the person has ‘testamentary capacity’— understanding the nature of the document and knowing and approving of its contents, particularly in circumstances where an unrelated person benefits.

22. Banking Financial abuse Guaranteeing mortgages and other loans
Checking “ Authority to Operate” forms
Banking
The Code of Banking Practice should provide that banks will take reasonable steps to prevent the financial abuse of vulnerable customers, in accordance with the industry guideline; Protecting Vulnerable Customers from Potential Financial Abuse.
The guideline should set out examples of such reasonable steps, including in relation to:
(a) Training staff to detect and appropriately respond to abuse;
(b) using software and other means to identify suspicious transactions;
(c) reporting abuse to the relevant authorities, when appropriate;
(d) guaranteeing mortgages and other loans; and
(e) measures to check that ‘Authority to Operate’ forms are not obtained
fraudulently and that customers understand the risks of these arrangements.

23. ALRC Elder Abuse Report 2017
43 recommendations for law reform in the following areas:
Improved responses to elder abuse in residential aged care.
The Report includes 43 recommendations for law reform. The overall effect will be to safeguard older people from abuse and support their choices and wishes through:
improved responses to elder abuse in residential aged care;
Elder Abuse- A National Legal Response (ALRC Report 131)

24. ALRC Elder Abuse Report 2017
43 recommendations for law reform in the following areas:
Improved responses to elder abuse in residential aged care.
Enhanced employment screening of care workers.
enhanced employment screening of care workers;
greater scrutiny regarding the use of restrictive practices in aged care;
Elder Abuse- A National Legal Response (ALRC Report 131)

25. ALRC Elder Abuse Report 2017
43 recommendations for law reform in the following areas:
Improved responses to elder abuse in residential aged care.
Enhanced employment screening of care workers.
Enduring documents.
building trust and confidence in enduring documents as important advanced planning tools;
protecting older people when ‘assets for care’ arrangements go wrong;
Elder Abuse- A National Legal Response (ALRC Report 131)

26. ALRC Elder Abuse Report 2017
43 recommendations for law reform in the following areas:
Improved responses to elder abuse in residential aged care.
Enhanced employment screening of care workers.
Enduring documents.
Banks and financial institutions.
banks and financial institutions protecting vulnerable customers from abuse;
Elder Abuse- A National Legal Response (ALRC Report 131)

27. ALRC Elder Abuse Report 2017
43 recommendations for law reform in the following areas:
Improved responses to elder abuse in residential aged care.
Enhanced employment screening of care workers.
Enduring documents.
Banks and financial institutions.
Self-managed superannuation sector.
better succession planning across the self-managed superannuation sector;
adult safeguarding regimes protecting and supporting at-risk adults.
Elder Abuse- A National Legal Response (ALRC Report 131)

28. ALRC Elder Abuse Report 2017
43 recommendations for law reform in the following areas:
Improved responses to elder abuse in residential aged care.
Enhanced employment screening of care workers.
Enduring documents.
Banks and financial institutions.
Self-managed superannuation sector.
Governments in Australia to work together to develop a National Plan to combat elder abuse.
adult safeguarding regimes protecting and supporting at-risk adults.
Elder Abuse- A National Legal Response (ALRC Report 131)

29. ALRC Elder Abuse Report 2017
Five key objectives of a National Plan:
Empower all older Australians to live with autonomy.
Promote positive views of ageing in the community.
Ensure there’s somewhere to turn to for help.
Develop a nationally consistent approach.
Understanding of abuse and its effects.
This report has elevated elder abuse as a national issue.
Its support for a cross-jurisdictional, cross-sector, multidisciplinary, multi-pathways approach to addressing elder abuse.
Its call for a National Plan.
Its call for specific actions (for example), its recommendations for every state and territory to enact safeguarding legislation; and powers of investigation for the Public Advocate and improving enduring appointments.
1 Empower all older Australians to live with their preferred level of autonomy, and have a say in decisions that affect their every day life
2. Promote positive views of ageing in the community
3. Ensure there’s somewhere to turn to for help to prevent abuse and neglect
4. Develop a nationally consistent approach to identifying and responding to abuse and neglect of older Australians and;
5. Build on our understanding of abuse of older Australians and its effects.
Currently we have the Royal Commission into Aged Care Quality and Safety – government responses may need to be reviewed in light of its recommendations
Ending abuse of older people is everyone’s responsibility, not just a responsibility of governments.
Elder Abuse- A National Legal Response (ALRC Report 131)

30. At-risk groups identified
At risk groups tend to be older people who are:
female,
socially isolated,
carers
experiencing significant disability,
of poor physical and/or mental health,
living in rural and remote areas,
experiencing poverty,
living in an Aboriginal or Torres Strait Islander communities,
living in culturally and linguistically diverse communities,
lesbian, gay, bisexual, transgender and intersex people.
Informants for these at – risk groups advised the National Plan must target specific priority strategies in relation to each of these cohorts
Empowerment, better protections and being culturally and linguistically relevant were key themes reported
Elder Abuse- A National Legal Response (ALRC Report 131)

31. Proposed Legislative Reviews
No Australian state or territory has introduced specific legislation to protect older people from abuse
All jurisdictions to address conduct
Conduct is described as elder abuse under offence provisions relating to personal violence and property offences. These include assault, sexual offences, kidnap and detention offences for neglect, although these are rarely used in respect to older people.
There are also comprehensive family violence frameworks in all jurisdictions that provide for quasi-criminal protective responses, which may be relevant for older people experiencing elder abuse in domestic settings
Elder Abuse- A National Legal Response (ALRC Report 131)

32. National Plan to Combat Elder Abuse
The Australian Government, in cooperation with state and territory governments, should develop a National Plan to combat elder abuse.
The National Plan should:
(a) establish a national policy framework;
(b) outline strategies and actions by government and the community;
(c) set priorities for the implementation of agreed actions; and
(d) provide for further research and evaluation.
Elder Abuse- A National Legal Response (ALRC Report 131)

33. National Plan to Combat Elder Abuse
The National Plan to identify goals, including:
(a) promoting the autonomy and agency of older people;
(b) addressing ageism and promoting community understanding of elder abuse;
(c) achieving national consistency;
(d) safeguarding at-risk adults and improving responses; and
(e) building the evidence base.
Ageism, and associated negative attitudes towards the experience of ageing, includes perceptions that older people lack worth and make less of a contribution to our society.
While this may not cause abuse of older people, it can contribute to an environment in which individuals who abuse older people fail to recognise that their behaviour constitutes abuse; other members of society fail to notice these negative behaviours or take action to stop them; and older people experiencing elder abuse blame themselves and are too ashamed to seek assistance.
Raising community awareness of the effects of ageism and its consequences is an important part of the response to abuse of older people.
Elder Abuse- A National Legal Response (ALRC Report 131)

37. The National Plan (cont)
The National Plan should take into account the different experiences and needs of older persons with respect to :
(a) gender
(b) sexual orientation
(c) disability; and
(d) cultural and linguistic diversity
(e) older Aboriginal and Torres Strait Islander people; and
(f) older people living in rural and remote communities
There should be a national prevalence study of elder abuse to build the evidence base to inform policy responses.
Elder Abuse- A National Legal Response (ALRC Report 131)

38. Senior Rights Service resources
Hon. Justice Sarah Derrington and Mr Matt Corrigan discuss the 43 recommendations for law reform within the ALRC report.
Hon. Justice Derrington and Mr Corrigan discuss the Australian Law Reform Commission (ALRC) Report which includes 43 recommendations for law reform to address elder abuse. Derrington and Corrigan discuss the task of the Commission to consider the legal framework and to ask if existing laws are enough to address elder abuse, or if the issues relate to better applying the law. In some areas, the question relates to whether laws are the best solution to identified problems.
PLAY VIDEO

39. RESPONSE
Cth Attorney General’s Report (Mar, 2019)

40. The National Plan is ready
Council of Attorneys-General report was released 19 March 2019
The release meets a key recommendation of the Australian Law reform Commission’s 2017 report, Elder Abuse: A National Legal Response.
The National Plan refers to abuse of older Australians instead of “elder abuse”. This is because in Aboriginal and Torres Strait Islander communities, Elder is not necessarily an older person but refers to appointed community representatives with cultural and other responsibilities.
A National Plan developed in conjunction with state and territory government agencies, sets out a framework for ongoing cooperation, action and monitoring against 5 key priority areas
National Plan to Respond to the Abuse of Older Australians (Elder Abuse)

42. National Research Program
The government is focused on strengthening the evidence base on the nature and prevalence of elder abuse in Australia
All governments have implemented a range of responses to the growing problem of abuse of older people. However, responses have been fragmented and developed without a robust body of evidence to make the case that one response works better than any other.
It is essential that we know more, to inform our collective responses, and target our efforts in the right places. That is why the centrepiece of the National Plan is to build an evidence base, to better inform policy and service responses, over the next four years and into the future.
National Plan to Respond to the Abuse of Older Australians (Elder Abuse)

43. The National Plan
Since 2016, the Australian Government has funded a National Research Agenda on abuse of older people
The first national prevalence study will commence in 2019
It will generate reliable estimates of how many older Australians have experienced abuse, and provide some data to understand the characteristics, contexts and consequences of abuse
This data will help shape the design and delivery of services to prevent and to respond to the abuse of older people. The national prevalence study will also provide a platform for identifying future research priorities that can be addressed through the National Plan.
National Plan to Respond to the Abuse of Older Australians (Elder Abuse)

44. 2019 Australia’s first National Study
An older persons survey
A general community survey
Findings from the study will be available in mid 2020
Older persons survey- this will collect data on personal experiences of elder abuse to enable comparison to the prevalence of elder abuse in other countries, such as Canada and the UK.
A general community survey – this will explore attitudes and behaviours that may enable or permit elder abuse, and collect information about family-identified concerns of elder abuse.
National Plan to Respond to the Abuse of Older Australians (Elder Abuse)

45. Key Priority Areas Enhancing our understanding.
Improving community awareness and access to information.
Strengthening service responses.
Planning for future decision-making.
Strengthening safeguards for vulnerable older adults.
These priority areas will result in:
Enhancing our understanding.
Improving community awareness and access to information.
Strengthening service responses.
Planning for future decision-making.
Strengthening safeguards for vulnerable older adults
National Plan to Respond to the Abuse of Older Australians (Elder Abuse)

46. Implementation and governance of the National Plan
Because each state has its own laws, institutions and frameworks and will develop individual responses to the National Plan’s five priority action areas;
an Implementation Executive Group will be formed.
This group of senior officials from the federal, state and territory governments will develop an Implementation Plan to provide more detail to the community on the activities that will be undertaken under the National Plan.
Views of the broader community may be sought. To measure progress the Implementation Executive Group will be responsible for reporting to the Council of Attorney Generals.( Refer to table of timeframes P10 of NP)
National Plan to Respond to the Abuse of Older Australians (Elder Abuse)

49. Evidence Base
For example, data on physical abuse collected by the Australian Bureau of Statistics as part of its Personal Safety Surveys gives some information to:
estimate how many people are impacted by physical abuse, and
identify the older people who might be most likely to experience this type of abuse
National Plan to Respond to the Abuse of Older Australians (Elder Abuse)

50. Improving community awareness and access to information
Raising community awareness is an important pillar on which the National Plan rests.
Educating the community is vitally important.
Awareness raising efforts will be targeted towards all older people and their families.
Particular efforts will be made to increase awareness and understanding among Aboriginal and Torres Strait Islander people, and people from CALD backgrounds and those from LGBTI community who may experience elder abuse in different ways.
Talk about pilot program that I did.
National Plan to Respond to the Abuse of Older Australians (Elder Abuse)

51. The Australian Government has committed $18.3 million
To deliver trials of specialist units to provide dedicated services across the country to support older people experiencing abuse.
National Plan to Respond to the Abuse of Older Australians (Elder Abuse)

52. Elder Abuse Service Trials
Specialist elder abuse units.
Health-justice partnerships.
Case management and mediation services.
The Australian Government has committed $18.3m over four years to support the delivery of front-line services to older people experiencing elder abuse. Funding will be allocated through grants covering the to period.
Specialist EA units-will comprise lawyers, social workers and other specialist staff, who will work along side clients to develop a case plan and respond to the individual’s needs.
Health- justice partnerships- older people identified by health care workers and social workers as being at risk or potentially subjected to elder abuse, can access specialised legal support services. These will work in partnership with the health system and related agencies such as community aged care services.
Case management and mediation services will work with the older person and their family to find solutions to the underlying problems driving abuse. Elder abuse can have its roots in complex family relationships, where there is conflict between adult children, family breakdown, family violence and mental health problems. This model recognises that older people may place maintaining their relationship with their children and grandchildren above their own safety.
National Plan to Respond to the Abuse of Older Australians (Elder Abuse)

53. NSW will establish an Ageing and Disability Commissioner
Appointment from 1 July 2019
The Commissioner will be a new, independent statutory appointee with an investigative function to respond to abuse,
neglect and exploitation of people with disability and older people in home and community settings.
It will have the power to initiate investigations, apply for and execute search warrants and share information with relevant agencies.
The Commissioner will also report and make recommendations to Government on systemic issues related to the abuse, neglect and exploitation of adults with disability and older people.
South Australia
South Australia’s Office of the Ageing (Adult Safeguarding) Amendment Act 2018 is the first of its kind in Australia.
A new Adult Safeguarding Unit will be established, to safeguard the rights of adults who are vulnerable to abuse or neglect.
The Adult Safeguarding Unit will be an approachable, empowered body, with statutory responsibility and accountability for
responding to reports of abuse, or neglect of vulnerable adults.
Queensland
Queensland’s Public Guardian has the strongest powers of any state or territory to investigate allegations of abuse, neglect or exploitation of persons with impaired decision-making capacity.
In exercising its functions, the Public Guardian seeks to protect the rights, interests and wellbeing of older Australians with impaired capacity.
Commonwealth
A new and independent Aged Care Quality and Safety Commission was established on 1 January 2019.
The Commission oversees the approval, accreditation, assessment, complaints handling, monitoring and compliance of Commonwealth funded aged care providers. This Commission brings together the functions of the former Australian Aged Care Quality Agency, the Aged Care Complaints Commissioner, and from 1 January 2020, the aged care regulatory functions of the Department of Health.
A new Chief Clinical Advisor will provide advice to the Commission, particularly on complex clinical matters
National Plan to Respond to the Abuse of Older Australians (Elder Abuse)

54. Current Developments
Announced this week – new National Elder Helpline
UTS and UoN have developed a tool kit for lawyers: Identifying and Acting on Elder Abuse: A Toolkit for Legal Practitioners 72
Safe and Savvy : A guide to help older people avoid abuse, scams and fraud Commonwealth Bank of Australia publication