Elder abuse has come into the spotlight in Australia in recent years, particularly in the law, following the Australian Law Reform Commission’s 2017 Elder Abuse – A National Legal Response report. Elder abuse can be defined as acts or omissions that cause harm or distress to an older person within a relationship where there is an expectation of trust. These relationships can include parent-child or elderly person-carer relationships, and the abuse can take on many forms, including financial, physical and psychological.
Like other forms of abuse, elder abuse is a complex issue that requires complex responses from individuals, industries (such as aged care), government and the legal system. Solicitors form just one part of that response, but we still have an important role to play in preventing elder abuse.
Documents that we can prepare for you
If a person loses capacity without having made an Enduring Power of Attorney, VCAT can appoint someone to make decisions on that persons’ behalf as his or her Guardian and/or Administrator. This may be a family member or an independent third party, such as the Public Advocate or a Trustee company. While VCAT will consider your wishes, the decision by this stage is largely out of your control.
Preparing an Enduring Power of Attorney
If you have a strong preference as to who should look after you if you lose capacity – and, importantly, if you believe someone around you is not suitable to manage your affairs – you should make an Enduring Power of Attorney while you have capacity. Powers of Attorney can cover your financial or personal affairs or both.
You should carefully consider who you appoint as your attorney(s) and ensure that you trust them completely. You also have the option of appointing a professional attorney, such as a solicitor or accountant, who is independent to your family and who must abide by the rules of their profession.
While making a Power of Attorney is not a guarantee against abuse, it does allow you to place your trust in someone that you think is going to look after you and your affairs properly, if you lose capacity.
Another way that Powers of Attorney protect you is that you can set conditions around their use. For example, you can allow or prohibit your attorney from acting in decisions where they have a conflict of interest. Or you can allow or prohibit your attorney from making gifts on your behalf, such as birthday gifts to children and grandchildren.
Preparing an Advance Care Directive
We can also assist you with documents relating to your medical care, such as Appointments of Medical Treatment Decision Makers and Advance Care Directives. Making these documents while you have capacity allows you to dictate your future care on your terms.
Checks and balances by a solicitor provide peace of mind
Just as we perform a series of checks to ensure that an elderly person has capacity to make a Will, we also want to ensure that our clients are making their own decisions and are not being pressured by a family member or carer.
Pressure from a family member to transfer them money or property can be an example of elder abuse.
Some of the checks and balances include:
- Checking that the client knows that they are making a legal decision. This may include asking the client to explain in their own words what they want their solicitors to do.
- Checking that the decision is the client’s own. Sometimes, it may be appropriate to ask a family member or carer to leave the room so that we can speak to the client privately and confirm their instructions.
- Confirming their reasons for making a particular decision. If a client wants to allocate more money to one child under their Will, for example, we will take detailed notes of the reasons why they are making that choice to ensure that it truly is their own decision.
- Sighting original or a certified copy of Power of Attorney documents, if an attorney is acting for the client, to ensure that the attorney has been properly appointed.
- Seeking confirmation from a client’s medical practitioner or have them formally assessed by a geriatrician or neuropsychologist to confirm that the client has capacity to make decisions.
How we can help if things go wrong
Despite careful planning, there are times where an elderly person can find themselves vulnerable to abuse by someone with power over their affairs, including an attorney, guardian or administrator.
Safety of victims of elder abuse
If you believe that someone you know is the victim of elder abuse, there are legal steps that you can take with the help of a solicitor. Of course, if you believe the person is in danger, your first step should be to call 000.
Attorney, guardian, administrator duties
Attorneys, guardians and administrators all have duties under the law which they must follow. Attorneys, for example, must act in good faith, with reasonable skill and care, and must keep records of financial transactions.
Penalties for dishonest behaviour
It is an offence for an attorney to dishonestly use their powers to obtain financial advantage or to cause loss to the principal (the person whose affairs they are supposed to look after). An attorney can face up to five years imprisonment or a fine of over $99,000, or both, for this behaviour.
Removal of attorneys
Should attorneys fail to perform their duties, or engage in prohibited behaviour, they can be removed from their role by VCAT. An application to VCAT can be made by the closest relative of the principal or by someone who has a special interest in their affairs (such as another family member). Similar frameworks exist for guardians and administrators.
A solicitor can assist you in preparing the necessary documentation for VCAT, including compiling evidence of suspected abuse.
You can also seek free guidance and assistance from Seniors Rights Victoria.
Our friendly team has many years of experience acting in the VCAT Guardianship and Administration list. If you have concerns about the behaviour of an attorney, guardian or administrator for someone you love, contact us to discuss how we can help you.