Published on 4 November 2016.

AAG 2016 National Conference, Canberra, 4 November 2016, Rosalind F Croucher*<--break->

[Note: Professor Croucher spoke to this paper at the conference, including making reference to presenters in the same session that preceded her speech, so the text below is not an exact transcript of the recording of the presentation]

Acknowledgment

I begin my presentation by acknowledging the traditional custodians of this land, and pay my respect to the elders, past and present, and to acknowledge emerging community leaders of the the Ngunnawal and Ngambri peoples and acknowledge Indigenous guests attending today.

The Elder Abuse Inquiry

In the Elder Abuse Inquiry, we have been asked to consider existing Commonwealth laws and frameworks which seek to safeguard and protect older persons from misuse or abuse by formal and informal carers, supporters, representatives and others. These should include, but not be limited to, regulation of:

  • financial institutions
  • superannuation
  • social security
  • living and care arrangements, and
  • health.

We have also been asked to examine the interaction and relationship of these laws with state and territory laws. This clearly takes us into the realm of guardianship and administration; and into laws dealing with ‘private’ appointments of substitutes through enduring powers of attorney.

The two key principles informing the Inquiry are expressed in the Terms of Reference as:

  • the principle that all Australians have rights, which do not diminish with age, to live dignified, self-determined lives, free from exploitation, violence and abuse; and
  • the principle that laws and legal frameworks should provide appropriate protections and safeguards for older Australians, while minimising interference with the rights and preferences of the person.

These ideas may be expressed on the one hand as a principle that focuses upon autonomy; on the other, one that focuses on protection. The ALRC is also to have regard to relevant international obligations relating to the rights of older people under United Nations human rights conventions to which Australia is a party. Where the Disability Inquiry had strongly embodied the first of these principles; the Elder Abuse Inquiry draws us firmly towards the second, with its focus on safeguards and protections. This is also reflected in the title of the Terms of Reference: ‘Protecting the Rights of Older Australians from Abuse’. The challenge is to find an appropriate protective and safeguarding response in laws and legal frameworks without abandoning the emphasis on rights—and particularly as expressed as the ‘will and preferences’ of the older person.

The ALRC comes to this inquiry having undertaken several inquiries in recent years that will provide a rich resource, both in terms of conceptualising the issues, but also in a very practical sense, in the excellent relationships we have built with a number of stakeholders. Here I include not just the Disability Inquiry, but also the landmark report in 2010 on Family Violence;[1] and the 2013 report that looked at barriers for older people in the workforce.[2] Each of those inquiries took us into the kind of thinking necessary to conceptualise the problems that traverse both across state and federal boundaries.

On 15 June, coinciding with Elder Abuse Awareness Day, the ALRC released the first consultation document for the inquiry, an Issues Paper calling for responses from the public to its 50 questions.[3] We received over 200 submissions, which is a very significant response. Just last week, on 14 October, we had the second Advisory Committee meeting for the inquiry, considering draft proposals for the Discussion Paper which will be released on 12 December. Submissions in response are due by the end of February next year. The Inquiry will conclude in the delivery of a final report to the Attorney-General in May 2017.

There are many case studies that can be drawn upon to gain an understanding of the elder abuse landscape. I include, for this purpose, examples from the submissions and other literature, including the 2016 study by the Australian Institute of Family Studies (AIFS), ‘Elder Abuse: Understanding Issues, Frameworks and Responses’, commissioned as part of the background to the ALRC inquiry.

There are distinct themes: the prevalence of financial abuse—often involving misuse of powers of attorney; the appointment of guardians without considering or against the wishes of the person; decisions about aged care being made with little or no regard to the wishes of the person. For example, using calls to the Queensland elder abuse hotline as a principal source of information, the AIFS study identified financial abuse as accounting for 40% of the most commonly reported type of abuse in 2014–15; and children in their 50s as the largest group of offenders.

The appointment of substitute decision makers through private instruments attracts a range of issues and are perhaps more troubling in the case studies than formally appointed, independent substitutes. In the submissions and the consultations undertaken so far, there are many examples of complaints about privately appointed attorneys, including issues such as: lack of accountability; ‘asset stripping’; enduring powers of attorney as ‘licences to steal’; the familial nature of abuse; inaccessibility of the supreme court (to pursue equitable remedies, regarding property transactions that have fallen apart, in particular). But, on the other hand, there is a clear recognition that enduring powers of attorney have a vital role to play in supporting older persons with declining abilities; similarly with respect to family agreements concerning property (collectively dubbed by Centrelink as ‘granny flat’ interests).

When it comes to tribunal appointments, some concerns have been expressed, for example, if the person concerned is not consulted about matters; various issues concerning interpreters, particularly if there is any perception of conflict of interest by virtue of a relationship to the person; enforced isolation by guardians; and mismanagement of funds by financial administrators.

We have been hearing about examples of what I might call ‘overzealousness’ in action by guardians and administrators. Is this a ‘best interests’ standard in action, the guardian deciding what they considered the best interests of the person: that the person be ‘settled’ into the aged care facility; that the person be ‘protected’ from knowing that her house was being sold?

I don’t pretend that this is easy.

Tribunal-appointed substitutes are subject to considerable scrutiny; and guardianship laws contain a range of accountability mechanisms that seek to ensure decision-makers exercise their powers appropriately. Tribunals have responsibility for overseeing the activities of decision-makers by reviewing guardianship and administration orders, assisted by Public Advocates or Public Guardians.

Guardians and administrators may be subject to statutory or requested tribunal reassessments of their appointments. Administrators are usually required to lodge a financial statement and plan, detailing how the represented person’s estate will be managed, as well as annual reporting. Public guardians or administrators are also accountable for their activities to their employers.

In the arena of privately appointed substitutes, through enduring powers of attorney and enduring guardians, there is considerable room for improvement before the normative change to a will and preferences approach will be in evidence. Some of this, perhaps, is about not understanding precisely what the extent, and limits, of the role is.

Attorneys under power, guardians and financial administrators are all fiduciary positions. In equity the obligations are very clear: no mixing of monies; no conflict of interest transactions (ie don’t benefit oneself); all transactions for the benefit of the person; accountability through tracing. Does this happen scrupulously in practice? Judging from the case studies we have received, clearly not, at least in the area of private individuals acting.

Seniors Rights Service provided a list of examples of types of financial abuse that have been brought to their notice:

  • An attorney uses the older person’s funds and spends the money on themselves;
  • The attorney lives in the older person’s home and obtains a benefit but does not pay market rent;
  • The attorney enters into a conflict transaction where they themselves benefit (they pay themselves for the care provided to the older person or they mortgage the older person’s home and keep the proceeds);
  • The attorney breaches the conditions of the enduring power of attorney;
  • The attorney mixes the funds of the attorney and the older person (such as placing the funds of the older person in a joint account) once the older person loses capacity;
  • An attorney taking money from bank accounts and through an ATM and spending the funds on themselves.[4]

We have heard many stories of siblings accusing siblings of wrongdoing. (And of course it is very easy to criticise from the other side of the fence). Evil step-mothers, wicked sons, greedy brothers. It’s like inheritance fights played out in advance. Indeed, ‘inheritance impatience’ is an expression that is apt to describe a number of the examples we have been given. (But there are also the angel sons and angel daughters, so we must not forget them).

Sometimes they are arrangements that start off in a good place but end up seriously derailed if issues like dementia run their course. I’m thinking here of ‘family agreements’ involving promises to care in exchange for property, or ‘granny flat’ arrangements as Centrelink calls them. What do you do when things go ‘pear-shaped’?

Many property issues, if they were to be litigated, would require hearings by a court with equitable jurisdiction, as many of the somewhat loose arrangements would struggle to be proved as contracts, either because of the vagueness or uncertainly of the promises involved, or because of lack of writing. And who wants to sue their kids—especially if it means that you are likely to lose contact with your grandchildren.

Would a more informal process help? A jurisdiction that allowed compensation without equity litigation, in relation to property issues and also powers of attorney? Compulsory conferencing? QCAT and VCAT have some jurisdiction along these lines.

So what can the ALRC do? The first message is that we can’t do it alone. Consultation is at the heart of our processes and we are now moving into the next crucial stage of the Elder Abuse Inquiry with the release of the Discussion Paper, scheduled for 12 December. Then we will be conducting a further round of consultations, particularly in the latter part of January and through February, leading up to the close of submissions at the end of that month. Do, please, continue your involvement.  

Practically, we are looking at a range of things, to ‘frontload’ understandings as much as possible, to improve complaint handling mechanisms, but at the same time ensuring that the older person is supported in protecting their rights. We need to respond to the plea that runs through many of the personal submissions, of ‘someone’s got to do something!’ But at the same time, overzealousness has to be resisted, otherwise it pushes the balance between the principles too much to the ‘protective’ side. Perhaps where ‘dignity of risk’ was a theme in the Disability Inquiry, ‘dignity in decline’ is one we need to embrace in the Elder Abuse Inquiry.

To conclude, I would like to quote remarks made by Rosemary Kayess, in speaking at the launch of the Disability Report. While she was speaking about people with disability, her remarks are equally apposite for older people, especially those with increased or increasing cognitive impairment:

Until people with disability can freely express their will and preference through reforms such as these, they will continue to lead a segregated and isolated life where they are vulnerable to exploitation, abuse and having their rights ignored. … For people with disability, these reforms demonstrate a willingness to accept disability as part of human diversity and to build social structures that are truly inclusive of all and fundamentally embrace people with disability as part of the human family.[5] 

Rosemary suggests what is necessary for the ideas expressed in the Disability Report to be made to work. Disability, and ageing are part of human diversity. We are making solid strides in understanding this in relation to people with disability. Older people, with or without disability, need to be embraced in a similar way.


*           President, Australian Law Reform Commission; Adjunct Professor, Macquarie University. This presentation draws from the work of the ALRC in both the Disability and Elder Abuse inquiries. Where additional comment is given in speaking to the presentation, this should be regarded as my own remarks and not necessarily those of the ALRC.

[1]           Family Violence — A National Legal Response (ALRC Report 114, 2010).

[3]           Available at <www.alrc.gov.au/publications/elder-abuse>. An enewsletter for the inquiry was also released at the same time: <http://us1.campaign-archive1.com/?u=0ac682945224f85fa1d89d148&id=b2cb656eb9>.

[4]           Seniors Rights Service, Submission 169.

[5]           The speech is at http://www.alrc.gov.au/news-media/speech/disability_launch_Kayess.