Elder Abuse under Review

by | Jun 18, 2017 | Aged Care Blog

The Australian Law Reform Commission (ALRC) has released its report on elder abuse and provided 43 recommendations for law reform to better protect older people from abuse and safeguard their autonomy.

The Report, released on 14 June 2017, follows an inquiry held to identify and model best-practice legal frameworks to promote and support older people and protect against misuse or advantage taken of formal or informal supporter roles.

Elder abuse is defined 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’. The abuse may be psychological, emotional, financial, physical, sexual, or constitute neglect.

Some of the major recommendations are summarised below.

National Plan (Chapter 3)

The ALRC recommends that a National Plan be implemented to combat elder abuse to provide for a long term approach to the issue with integrated planning and policy development.

Aged care (Chapter 4)

The ALRC recommends that aged care legislation be amended to establish a serious incident response scheme, provide for enhanced worker screening and management, create National Guidelines, and vary the rules requiring a substituted decision maker when entering an agreement.

Enduring appointments (Chapter 5)

Enduring attorneys and guardians are valuable tools when an older person loses their decision-making capacity, but they can also facilitate abuse. The ALRC recommends adopting nationally consistent safeguards, providing tribunals with the jurisdiction to award compensation in cases of breach, and establishing an online register.

Family Agreement (Chapter 6)

“Assets for care” arrangements (i.e. family agreements where an older person transfers title of their home or the sale proceeds to an adult child in exchange for ongoing care and housing) are often not documented and entered into without legal advice. The ALRC recommends that tribunals have jurisdiction over disputes on these arrangements, and that the Social Security Act 1991 be amended to require these agreements to be in writing for pension purposes.

Superannuation (Chapter 7)

The ALRC recommends the uncertainties surrounding binding death benefit nominations, i.e. whether an enduring attorney can sign one on behalf of a fund member, be resolved. The ALRC also recommends changes to self-managed superannuation funds (SMSF), to allow for better regulation, improved planning for potential legal disability, and compulsory notification of trustees.

Wills (Chapter 8)

The ALRC recommends establishing national best practice guidelines to increase the understanding of elder abuse amongst relevant professionals like lawyers and financial advisers, and to warn of the dangers associated with DIY wills.

Banking (Chapter 9)

The ALRC recommends that the Code of Banking Practice be changed to require banks to take ‘reasonable steps’ to identify and prevent the financial abuse of older customers. This will involve staff training, implementing systems to detect unusual transactions, and speaking with vulnerable customers directly.

Guardianship and administration (Chapter 10)

The ALRC recommends that private guardians and financial administrators sign undertakings acknowledging their obligations and responsibilities, and for tribunals to take steps to assist older people to participate in the application process.

Health and National Disability Insurance Scheme (Chapter 11)

The ALRC did not make recommendations but discussed health care worker responses to elder abuse, and noted that it was too early to assess NDIS as an avenue for elder abuse.

Social Security (Chapter 12)

The ALRC recommends that Centrelink monies paid to older persons be managed separately from their own funds, and that the Department of Human Services develop an elder abuse strategy.

Criminal Justice Responses (Chapter 13)

The ALRC did not make any recommendations for criminal law reform.

Safeguarding adults at risk (Chapter 14)

The ALRC recommends the introduction of safeguard laws to protect ‘at-risk adults’ defined to mean those who need care and support, are being abused or neglected or are at risk of such behaviour, and cannot protect themselves from abuse. The laws would establish a statutory body to provide for help accessing health and other services and coordination of various agencies and services to assist at-risk adults.

To read the report in full, please click here.

Emma Jack

Emma Jack