Justice Connect made nine recommendations, ranging from “quick wins” to more substantial initiatives. Our suggestions address elder abuse through prevention and early intervention, better integration of services and an adapted legal response.
Evidence suggests older people are reliant on their family to manage their financial affairs. Often, they cite a lack of confidence in managing their affairs themselves. They also often have a limited understanding about powers of attorney, or how they can be misused. Consequently, a targeted community education campaign promoting the financial literacy of older people and their understanding on substitute decision-making, would encourage financial independence and reduce the risk of financial elder abuse.
If elder abuse does occur, older people are generally reluctant to seek assistance. Elder abuse can be subtle and, without disclosure, can be difficult to detect. The existing risk assessment framework for family violence does not screen for significant risk factors of elder abuse – such as the accumulation of assets. As such, we need a framework designed to screen for the risk factors of elder abuse.
These screening tools must be supported by trained health and community professionals, who are generally best placed to identify and respond to elder abuse. However, ad hoc training does not necessarily translate into the systemic change of practice needed to effectively identify and respond to elder abuse. A more integrated, multi-disciplinary approach is required, such as a Health Justice Partnership (HJP). By integrating legal, health and community services, the HJP model of service delivery can create synergies, maximising the healthcare team’s ability to identify and respond to elder abuse.
The legal system must advance the human rights of older people. We need to provide a range of interventions adapted to their needs and priorities. As financial abuse is commonly perpetrated through the use of substitute decision-making appointments and “assets for care” arrangements, the recommendations focus on addressing gaps and deficiencies in the legal frameworks that regulate these situations.
Legislative amendments are required to provide for greater accountability of guardians and administrators who perpetrate financial elder abuse, such as the ability to order compensation and impose penalties. Systemic oversight of powers of attorney is also required.
To enforce property rights under an “assets for care” arrangement, an older person may have to overcome onerous evidentiary burdens imposed by archaic legal presumptions that are not adapted to the generally informal nature of these arrangements. Legislative amendments are required to limit the operation of these presumptions in the adjudication of property matters.
In its current form family violence legislation does not necessarily protect older people experiencing neglect and subtle forms of financial abuse. By extending the definition of family violence, intervention orders may provide a useful mechanism to address these instances of abuse.
Not only do legal interventions have to be appropriate, older people – especially those with diminished capacity – must be able to access them. Currently, lawyers must navigate competing professional obligations in assessing a client’s capacity to provide instructions. Clarification of these obligations encourages compliance and allows the lawyer to progress the older person’s legal matter arising in the context of elder abuse. Further barriers can arise if an older person has a matter requiring litigation. Amendments to court rules are required with respect to the appointment of litigation guardians, their risk of costs liability as well as the oversight of their conduct.