Elder Abuse Discussion Paper Released by ALRC

Tuesday 13 December 2016 @ 1.47 p.m. | Legal Research

Yesterday (12 December 2016), the Australian Law Reform Commission (ALRC) released its Discussion Paper into Elder Abuse (The Discussion Paper). The Discussion Paper includes 43 proposals for law reform. Key proposals have been made concerning powers of investigation for public advocates and public guardians, enduring powers of attorney and enduring guardianship; family agreements, banking, aged care and social security.

Terms of Reference

As stated in our previous article, the ALRC was tasked with considering areas including regulation of financial institutions, superannuation, social security, living and care arrangements and health.  They considered  best practice laws and frameworks that:

  • promote and support older people’s ability to participate equally in their community and access services and advice;
  • protect against misuse or advantage taken of informal and formal supporter or representative roles, including:
    • formal appointment of supporters or representatives;
    • informal appointment of support and representative roles (eg family members);
    • prevention of abuse;
    • mitigation of abuse;
    • reporting of abuse;
    • remedies for abuse;
    • penalties for abuse; and
  • provide specific protections against elder abuse.

Discussion Paper Proposals

According to the Discussion Paper, elder abuse usually refers to the abuse or neglect of older people by family, friends and carers. Psychological and financial abuse are common types of elder abuse. Psychological abuse includes name calling, bullying and harassment. Financial abuse includes such things as taking an older person's money or belongings, forcing them to sell their home or hand over assets, moving into their home without permission, and incurring bills which the older person is left to pay. Physical assault and neglect are among other disturbing types of elder abuse.

According to the ALRC Media Release, the Discussion Paper includes 43 proposals for law reform with key proposals being made concerning powers of investigation for public advocates and public guardians, enduring powers of attorney and enduring guardianship; family agreements, banking, aged care and social security, including:

  • An online  national register for enduring documents, and tighter witnessing and reporting requirements;
  • Expanding the role of public advocates and public guardians in responding to elder abuse;
  • Requiring banks to take reasonable steps to prevent financial abuse;
  • Allowing tribunals to hear disputes within families about assets-for-care arrangements—providing a low cost and less formal forum for dispute resolution;
  • For aged care, strengthening the compulsory reporting scheme by providing for independent oversight of complaints of abuse, enhancing employment screening processes, and the introduction of an official visitors scheme; and
  • Support for a national plan with strategies to combat elder abuse beyond legal reforms.

Particularly worrying was the finding that elderly people are often vulnerable to financial abuse by their families, particularly through use of a power of attorney and that this is a widespread problem, with some examples and research suggesting that about 6 per cent of elderly Australians are victims of elder abuse every year, according to an SMH article.

Reaction to the Discussion Paper

ALRC president Rosalind Croucher said:

"People describe powers of attorney as a licence to steal...And there might be multiple powers of attorney. There's an uncertainty as to which one is the right one, which one is the most recent, and which is the valid one."

Age Discrimination Commissioner, Dr Kay Patterson, is a member of the Inquiry’s Advisory Committee and stated:

"Elder abuse, like child abuse and family violence, is a largely hidden phenomenon. Older people may be reluctant to report abuse because evidence shows that it is most commonly perpetrated by family members and those closest to them...Like all Australians, older people have the right to dignity and a life free from abuse, violence, exploitation and neglect."

Final Submissions to the Discussion Paper are due by the 27 February 2017.

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