Legal issues affecting older people

Elder abuse is any act that causes harm to an older person and is carried out by someone they know and trust, such as a family member or friend. Elder abuse can happen in many contexts, including in the home and in residential aged care.

Elder abuse is one of the worst manifestations of ageism and inequality in our society and most commonly occurs within the family. Elder abuse violates an older person’s basic right to feel safe. It is a controlling behaviour or action that frightens, coerces or intimidates and it can be illegal. Elder abuse commonly falls within the definition of family violence; it can occur any time; and it can range from being subtle to extreme.

Elder abuse is believed to be greatly under-reported (see ‘Under-reporting’, below). The World Health Organization quotes a 2017 study that estimated that each year, 15.7 per cent of people aged 60 years and older (i.e. one in six) were subjected to some form of abuse. The Australian Royal Commission into Aged Care Quality and Safety estimated that the prevalence of physical abuse, emotional abuse and neglect in aged-care settings is 39.2 per cent (https://agedcare. royalcommission.gov.au).

In December 2021, the Australian National Elder Abuse Prevalence Study Final Report (https://aifs. gov.au/research/research-reports/national-elder- abuse-prevalence-study-final-report) was released. This study was commissioned by the Commonwealth Attorney-General’s Department and is the most comprehensive research into elder abuse in Australia to date. It found that 15 per cent of people aged 65 and over had experienced some form of elder abuse within the last 12 months. The study excluded people with cognitive impairment and those who live in aged care. Consequently, the prevalence of elder abuse across the whole elder people cohort must be significantly higher.

Elder abuse can happen to any older person. Research completed by the National Ageing Research Institute (NARI) – based on data provided by Seniors Rights Victoria about its clients over a seven-year period – suggests that victims are more likely to be female (72.5 per cent). However, the proportion of older men experiencing elder abuse may be higher, but this is not showing up in the data because they are not seeking help.

The National Elder Abuse Prevalence Study found that, overall, the prevalence of elder abuse is similar for men and women; however, men were slightly more likely to experience physical abuse, and women were more likely to experience sexual abuse and neglect.

Elder abuse occurs to older people from all cultures and backgrounds. There is no evidence that elder abuse is greater in different cultural groups. However, experiences of elder abuse vary for people from different cultures. An understanding of cultural factors is important when seeking to assist someone who is experiencing elder abuse. Under-reporting If abuse occurs, often the older person suffers in silence for the following reasons:

• they feel ashamed about their family member’s behaviour;
• they don’t want to reveal their personal problems to strangers;
• there is a tendency to excuse their family member’s behaviour;
• they are reluctant to get their family member into trouble – especially because older people impacted by elder abuse have often never had any interactions with lawyers or the police;
• there is little understanding of the long-term legal and/or financial implications of, for example, transferring property or gifting money.

The NARI data suggests that perpetrators of elder abuse are both male (60 per cent) and female (40 per cent). The NARI data also shows that approximately 92 per cent of abuse is perpetrated by people related to the older person or in a de facto relationship with the older person and two-thirds (67 per cent) of abuse is perpetrated by a child of the older person.

The National Elder Abuse Prevalence Study also found that elder abuse is mostly committed by family members, with adult children being the most common perpetrators, followed by intimate partners, then partners of adult children, and grandchildren to a much lesser extent. Adult children were the most likely to commit financial, physical and psychological abuse. Sons were almost twice as likely as daughters to commit financial abuse. Adult children were on par with intimate partners as perpetrators of neglect.

Elder abuse may be physical, social, financial, psychological or sexual abuse and can include mistreatment and neglect. Often a person will experience more than one type of elder abuse at the same time. The NARI analysis of Seniors Rights Victoria’s data shows that financial abuse and psychological/emotional abuse together are the most common forms of abuse reported by older Victorians (82 per cent). The National Elder Abuse Prevalence Study found that psychological abuse was the most common type of abuse at 12 per cent. Financial abuse Financial abuse is the illegal or improper use of a person’s property, finances or other assets without their informed consent or where consent is obtained by fraud, manipulation or duress. It usually occurs between an older person and a family member but can also occur with carers or friends. Some examples of financial abuse are:

• a family member borrowing money and promising to repay it, but not paying the money back, and/or alleging it was a gift;
• abusing financial powers of attorney;
• stealing money or using an older person’s bank or credit card without their consent;
• forcing or pressuring an older person to not spend money in order to preserve an inheritence;
• forcefully encouraging changes to a will, the title to a house or other legal document in a way that financially benefits the abuser;
• selling property or assets belonging to the older person without their authority or consent;
• forcing the transfer or sale of property or assets;
• promising care/accommodation in return for the transfer of assets and then not providing the care/accommodation.

  Physical abuse

  Physical abuse includes any form of assault, such as hitting, slapping, shoving, pushing and burning. It also includes physical restraint, such as tying a person to a chair or bed or locking a person in a room.

  Psychological or emotional abuse

  Psychological or emotional abuse is the infliction of mental or emotional anguish by threats, humiliation or other verbal or non-verbal conduct. Examples of psychological/emotional abuse are:
• verbal assaults;
• humiliation;
• threats;
• harassment;
• intimidation;
• other abusive behaviours that result in emotional or psychological distress. Psychological abuse may make the older person feel ashamed or powerless and often occurs in combination with other forms of abuse.

  Social abuse

  Social abuse is preventing a person from having contact with relatives, friends, service providers and other people, or restricting the person’s activities, thereby increasing their sense of isolation. Some examples of social abuse are:
• confining a person to their home or room;
• preventing a person from answering the phone or door;
• depriving the person of access to transport;
• intentionally embarrassing the person in front of others;
• stalking.

  Sexual abuse

  Sexual abuse is any sexual activity or behaviour for which the older person does not consent or is incapable of giving consent (e.g. a person with advanced dementia). Sexual assault and abuse includes a range of offences, such as rape, indecent assault and sexual harassment. Sexual abuse can also include sexually exploitative or shaming acts such as:
• leaving a person in a state of undress;
• forcing a person to view sexually explicit materials;
• making sexually suggestive comments;
• exhibitionism;
• touching a person inappropriately;
• making uninvited sexual approaches.

  Neglect

  Neglect occurs when an older person is deprived of the basic necessities of life. There are two types of neglect: active and passive. Active neglect Active neglect is the deliberate withholding of basic care or necessities and includes:
• leaving an older person in an unsafe place or state;
• abandoning an older person;
• not providing an older person with adequate clothing, food and liquids;
• stopping an older person from accessing medical treatment;
• not treating an older person when they are unwell;
• over-medicating or under-medicating an older person. Passive neglect Passive neglect is the failure to provide proper care to an older person. This may occur unintentionally and can be due to a carer’s stress, lack of knowledge or ability. A remedy for passive neglect may be getting supports for both the carer and older person.

  Mistreatment

  Mistreatment involves the denial of a person’s right to live safely and independently. Examples of mistreatment are:
• denying a person privacy or intimacy;
• withholding information;
• denying a person access to other relatives and friends by stopping visitors or interfering in phone calls;
• intercepting a person’s mail;
• restricting a person’s freedom by not letting them leave the house.

Depending on the type of abuse and an individual’s situation, older people may be able to address the abuse through intervention orders, family dispute resolution and mediation, legal assistance to recover funds and property, and/or changing living or care arrangements. Call the police If you are in immediate danger, you should always call the police on 000. Elder abuse is a form of family violence and recent family violence reforms in Victoria mean that the police are better equipped to understand and deal with situations of elder abuse than they once were.

Where the danger is not immediate, or the need is not urgent, you can call the police on 13 14 44. Or you can visit the elder abuse section of the Victoria Police website (www.police.vic.gov.au/elder-abuse). Contact Seniors Rights Victoria If you or someone you know is experiencing (or is at risk of experiencing) elder abuse, contact Seniors Rights Victoria (SRV) for advice and assistance. SRV is a specialist community legal centre focused on elder abuse. It provides information and referral, legal advice, legal casework and individual advocacy services on elder abuse. Contact the helpline (Monday to Friday, 10 am to 5 pm) on 1300 368 821. There are also many resources on SRV’s website (www. seniorsrights.org.au).

SRV can help any Victorian aged 60 and above, or any Indigenous Victorian aged 45 and above, on matters relating to elder abuse. This includes:

• intervention orders (elder abuse is a form of family violence and intervention orders are often an available option);
• arrangements involving the exchange of assets in return for the promise of care, including ‘family care’, ‘assets care’ and granny flat arrangements;
• situations involving adult children who return home to live, or who have never left home;
• behaviour that is overly restrictive of a person’s ability to make their own lifestyle decisions, including inappropriate exercises of power under a power of attorney for personal matters;
• financial abuse including: – debts and loans, – misuse of financial powers of attorney, – transfer of property, – co-ownership disputes;
• advice regarding disputes about contact with grandchildren;
• guardianship and administration;
• future planning to protect against elder abuse, including powers of attorney and wills. Note that SRV does not draft wills and powers of attorney unless a case is open and a new will or power of attorney is needed to prevent further abuse occurring.

Elder abuse can arise out of a number of different situations, and many of these are linked to changes a person makes in their life as they get older. These may include changes to their own lives (e.g. living arrangements or increased care needs) or changes made to assist or accommodate other family members (e.g. using property as security for an adult child’s loan, gifting or loaning money, and making decisions about wills and inheritance).

Elder abuse can also arise in situations where an older person accepts financial advice from a person with whom they have a relationship of trust (e.g. an adult child or a friend), and the advice is either incorrect or incomplete, or is ultimately to the benefit of the other person, rather than the older person. Common scenarios include a family member advising an older person to transfer their savings into the family member’s account to avoid a reduction in the aged pension, or to transfer their property out of their own name to avoid a nursing home bond payment.

As older people are living longer, it is important for individuals to understand their rights and responsibilities and consider the long-term effects of any financial decisions, including the expense of future aged care and health needs. How to limit the risk of financial abuse To limit the risk of experiencing financial abuse, older people should:

• seek independent legal advice when making decisions or changes about property and finance;
• consider the implications on social security benefits of decisions about assets, income, superannuation and property;
• create formal written agreements regarding decisions about finance and care arrangements within the family.