6.1 A specific type of financial abuse of older people has been recognised in the context of family agreements. A ‘family agreement’, of the kind considered in this chapter, has a number of forms but is typically made between an older person and a family member. The older person transfers title to their real property, or proceeds from the sale of their real property, or other assets, to a trusted person (or persons) in exchange for the trusted person promising to provide ongoing care, support and housing. As an exchange of property in return for long term care is at the centre of these family agreements, they are also known as ‘assets for care’ agreements or arrangements.
6.2 These agreements are typically not put in writing. Where they are written, family agreements may be prepared by one of the parties to the agreement, without legal advice, and the agreement generally does not provide for what happens if there is a breakdown of the relationship.
6.3 While such arrangements can fulfil an important social purpose, there can be serious consequences for the older person if the promise of ongoing care is not fulfilled, or the relationship otherwise breaks down. It may be difficult to establish that a contract was intended, and what its terms were. The other party is likely to be the registered proprietor of the property, and it may be difficult to establish a specific interest in the land. The older person may be left without money or even a place to live, a kind of financial abuse identified by many stakeholders as financial abuse.
6.4 The ALRC recommends that tribunals be given jurisdiction over disputes within families with respect to residential real property that is, or has been, the principal place of residence of one or more of the parties to the assets for care arrangement. Access to a tribunal provides a low cost and less formal forum for dispute resolution—in addition to the existing avenues of seeking legal and equitable remedies through the courts.
6.5 Moreover, because social security laws and Centrelink processes relating to eligibility for the Age Pension may be driving entry into family agreements in ways that are disadvantageous to the older person if the agreement fails, the ALRC recommends that the Social Security Act 1991 (Cth) be amended to require that assets for care agreements (known as a ‘granny flat interest’) be expressed in writing in order for the older person to continue to be entitled to the Age Pension.
6.6 In order to facilitate greater community awareness and understanding, the ALRC also suggests that the Department of Human Services should ensure that any elder abuse strategy developed by the Department, as recommended in Chapter 12, specifically addresses the potential connection between elder abuse and family agreements.