08.06.2017
1.20 As stakeholders observed, elder abuse is ‘complex and multidimensional’ and requires a ‘multi-faceted response’. In this Report, the ALRC contributes to that response with a set of recommendations—traversing laws and legal frameworks across Commonwealth, state and territory laws—aimed at achieving a nationally consistent response to elder abuse. The ALRC has looked to the horizon and developed a conceptual template to guide future reform, and has identified immediate strategies and specific reforms to support older people’s autonomy and to safeguard against abuse.
A National Plan to combat elder abuse
1.21 In Chapter 3 the ALRC recommends that a National Plan be developed to combat elder abuse. It is a capstone recommendation of this Report and provides the basis for a longer term approach to the protection of older people from abuse. The Plan will provide the opportunity for integrated planning and policy development. In a practical sense, much work already undertaken and in train, both at the Commonwealth level and in states and territories, together with recommendations throughout this Report, may be seen to constitute strategies in implementation of a commitment to combat elder abuse.
1.22 A national planning process offers the opportunity to develop strategies beyond legal reforms, including: national awareness and community education campaigns; training for people working with older people; elder abuse helplines; and future research agendas.
1.23 Concerning research, the ALRC particularly recommends that a national prevalence study of elder abuse be conducted, to improve the evidence base and inform policy responses. The Australian Government has already committed to a prevalence study,[8] and steps have been taken in this direction with the completion of a scoping study by the Australian Institute of Family Studies in May 2017.
Aged care
1.24 Older people receiving aged care—whether in the home or in residential aged care—may experience abuse or neglect. Abuse may be committed by paid staff, other residents in residential care settings, family members or friends.
1.25 In Chapter 4 the ALRC recommends reform to enhance safeguards against such abuse, 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.
1.26 The ALRC also addresses decision making in aged care and recommends that aged care laws be reformed consistently with the Commonwealth Decision-Making Model in the ALRC Report, Equality, Capacity and Disability in Commonwealth Laws (2014). The ALRC also recommends that aged care agreements should not require that a person has formally appointed a substitute decision maker.
Enduring appointments
1.27 Enduring powers of attorney and enduring guardianship (together referred to as ‘enduring documents’) are important tools that allow people to choose who will make decisions for them, should they later lose decision-making ability. These decision-makers can play an important role in protecting people with impaired decision-making ability from abuse.
1.28 However, these arrangements may also facilitate abuse by the decision maker themselves. In Chapter 5, the ALRC recommends reforms to laws relating to enduring documents, including: adopting nationally consistent safeguards; giving tribunals jurisdiction to award compensation when duties are breached; and establishing a national online register
Family agreements
1.29 Some ‘family agreements’ involve an older person transferring the title to their home, or the proceeds from the sale of the home 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. There can be 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.
1.30 The ALRC recommends in Chapter 6 that tribunals be given jurisdiction over disputes within families with respect to these arrangements. 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.
Superannuation
1.31 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.
1.32 As discussed in Chapter 7, there is much uncertainty and ambiguity concerning ‘binding death benefit nominations’ (BDBNs), particularly regarding whether an enduring attorney may sign a BDBN on behalf of a member. The ALRC recommends that these uncertainties and ambiguities need to be resolved in a focused review of the provisions. The central legal issue concerns the ability of fund members to direct trustees with respect to the payment of funds on the member’s death.
1.33 Self-managed superannuation funds (SMSFs) are subject to limited regulation. This may present problems when a fund comes under the control of someone with impaired decision-making ability. The ALRC’s recommendations in relation to SMSFs are designed to:
better facilitate the process for appointing a person’s enduring attorney as trustee/director of their SMSF in the event of a legal disability;
improve planning for a potential legal disability as part of the operating standards of an SMSF; and
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.
Wills
1.34 Pressuring someone to make or change their will may, in some cases, be financial abuse. To help combat elder abuse and to reduce undue influence in the making of wills, the ALRC recommends in Chapter 8 that there be a national coordinated response to improving lawyers’ understanding of the potential for elder abuse using wills, through national best practice guidelines. Other professionals, such as financial advisers, may also benefit from improved understanding.
1.35 The ALRC also recommends community education about the dangers and difficulties associated with ‘do-it-yourself’ wills and discusses other aspects of succession law that might benefit from further review.
Banking
1.36 Banks and other financial institutions are in a good position to detect and prevent the financial abuse of their older and at-risk customers. In Chapter 9, the ALRC recommends that the Code of Banking Practice be amended to require banks to take ‘reasonable steps’ to identify and prevent the financial abuse of vulnerable customers.
1.37 Steps include training staff in how to respond appropriately to elder abuse and setting up systems to detect unusual transactions and other avenues for abuse. Banks should also speak with vulnerable customers directly, or otherwise check arrangements, when a form purports to authorise another person to operate someone’s bank account. They should also warn customers, train staff, and take other steps to ensure people are not being financially abused when they guarantee a loan.
Guardianship and administration
1.38 Chapter 10 considers how guardianship and financial administration schemes can safeguard against elder abuse. The ALRC recommends that private guardians and private financial administrators be required to sign an undertaking about their obligations and responsibilities. The ALRC also recommends that state and territory tribunals take additional measures to help people who are the subject of an application for a guardianship or financial administration order to participate in the process to the greatest extent possible.
Health and National Disability Insurance Scheme
1.39 Health professionals play an important role in identifying and responding to elder abuse. While no recommendations are made in Chapter 11, the ALRC discusses how health professions might be encouraged to take advantage of the opportunity to respond to elder abuse, for example through: training health professionals about recognising elder abuse and relevant privacy considerations; improving referral pathways; and developing multidisciplinary responses to elder abuse.
1.40 The chapter also discusses the National Disability Insurance Scheme, but the ALRC considers that it is too early to determine whether the scheme is an avenue for elder abuse or to test the effectiveness of the safeguards.
Social security
1.41 Engaging with social security through Centrelink is a part of life for most older Australians. This gives Centrelink a distinct opportunity to assist with the detection and prevention of elder abuse—especially financial abuse through, for example, Carer Payments and payment nominee arrangements.
1.42 In Chapter 12, the ALRC recommends that monies paid to nominees should be required to be kept separately from the nominee’s own funds and that Centrelink speak directly with people of Age Pension age when they enter into arrangements with others that concern their social security payments. More generally, the ALRC recommends that the Department of Human Services (Cth) develop an elder abuse strategy.
Criminal justice responses
1.43 Chapter 13 discusses the criminal justice response to elder abuse, but makes no recommendations for reform. The ALRC concludes that existing criminal laws adequately cover conduct which constitutes elder abuse, and does not recommend the enactment of new offences for ‘elder abuse’, ‘elder neglect’ or ‘misuse of powers of attorney’.
1.44 The chapter discusses other ways to improve the criminal justice response to elder abuse, including in relation to how police respond to such abuse, and helping witnesses who need support to participate in the criminal justice system.
Safeguarding adults at risk
1.45 In Chapter 14, the ALRC recommends the introduction of adult safeguarding laws in each state and territory. Most public advocates and guardians already have a role in investigating abuse, particularly abuse of people with impaired decision-making ability, but there are other vulnerable adults who are being abused, many of them older people. The ALRC recommends that these other vulnerable adults should be better protected from abuse.
1.46 Safeguarding services should be available to ‘at-risk adults’, which should be defined to mean adults who: (a) need care and support; (b) are being abused or neglected, or are at risk of abuse or neglect; and (c) cannot protect themselves from the abuse. Some, but by no means all, older people will meet this definition.
1.47 In most cases, safeguarding and support should involve working with the at-risk adult to arrange for health, medical, legal and other services. In some cases, it might also involve seeking court orders to prevent someone suspected of abuse from contacting the at-risk adult. Where necessary, adult safeguarding agencies should lead and coordinate the work of other agencies and services to protect at-risk adults.
1.48 Existing public advocates and public guardians have expertise in responding to abuse, and may be appropriate for this broader safeguarding function, if given additional funding and training. However, some states or territories may prefer to give this role to another existing body or to create a new statutory body.
1.49 The ALRC recommends that consent should be obtained from the at-risk adult, before safeguarding agencies investigate or take action about suspected abuse. This avoids unwanted paternalism and shows respect for people’s autonomy. However, in particularly serious cases of physical abuse, sexual abuse or neglect, the safety of an at-risk person may sometimes need to be secured, even without their consent. Where there is serious abuse, safeguarding agencies should also have coercive information-gathering powers, such as the power to require people to answer questions and produce documents.
1.50 The chapter also recommends statutory protections from civil liability, workplace discrimination laws and other consequences that might follow from reporting suspected abuse to authorities. Protocols about reporting abuse should also be developed for certain professionals who routinely encounter elder abuse.