Abuse of older persons

6.12       In some states and territories the number of new applications for guardianship or financial administration orders has been steadily increasing. In NSW, for example, over 9,000 new applications were finalised in the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) during 2014–2015. The number of new applications received has increased over 23% since 2010–2011.[13]

6.13       The NSW Trustee and Guardian (NSWT&G) advised that, as of 31 December 2015, 11,162 people were subject to direct financial management with the NSWT&G, and 3,913 were subject to the financial management of a private manager.[14]

6.14       Guardianship and financial administration orders are increasingly being made for older people,[15] with the majority of current orders applying to persons over 65 years with dementia.[16] The NCAT stated in its 2014–2015 Annual Report, that the increased workload of the Division has been ‘directly impacted by the ageing of the population’.[17]

6.15       In Issues Paper 47, the ALRC asked for evidence regarding the abuse of older persons by guardians and financial administrators.[18] Stakeholders confirmed that, in their experience, while abuse of older persons had been perpetrated by guardians or financial administrators,[19] it was not in the same numbers as abuse by enduring attorneys.[20] The Office of the Public Advocate (Vic) noted:

Elder abuse may also be experienced by people subject to a guardianship or administration order of VCAT (or relevant state/territory court or tribunal). While tribunal oversight when making the order makes it less likely, OPA has occasionally been appointed guardian following allegations of elder abuse against a private guardian or has seen a professional administrator appointed after a private administrator failed to present VCAT with adequate records and was suspected of financial mismanagement.[21]

6.16       The NSWT&G advised that, in 2015, it litigated 521 matters on behalf of represented persons. Of these, 65 were identified as containing financial abuse of an older person; and six related to financial abuse by a private financial administrator (9%).[22] The proportion of matters litigated for the financial abuse of an older person was similar in previous years. The NSWT&G advised that there had been

a few cases where close family members are appointed financial manager and misappropriate the funds of those whom they manage. There have been cases involving misappropriation of a client’s funds by a mother, another involving a client’s father and others have involved misappropriation by siblings.[23]

6.17       As NSWT&G state, the figures represent only matters that they litigated. There may be innumerable matters that are undetected or not acted on. Even where financial abuse was identified, there may have been valid reasons why litigation did not proceed, including that the client had expressed contrary wishes or funds were not recoverable; the client may not have had the funds to proceed in the Supreme Court; or it may have been difficult to obtain the evidence required to meet the civil standard of proof in the court. 

6.18       State Trustees Victoria submitted statistics from a case review conducted in February 2016. Of the 128 cases of financial abuse reviewed, 49% of abusers had no legal authority to act for the victim; 27% held a power of attorney; and 20% had acted under a financial administration order.

6.19       State Trustees Victoria provided an example of an administrator who lent himself $20,000 of his parent’s money which was then not repaid, and noted there to be

plenty of evidence that VCAT appointed administrators are guilty of financial abuses of represented persons. State Trustees has no reason to assume that VCAT appointed guardians are not also equally guilty of offending.[24]

6.20       Stakeholders referred to the case of Woodward v Woodward [2015] NSWSC 1793.[25] In this case, the tribunal had appointed one of Mrs Woodward’s sons as her financial manager. Acting in this capacity, the son had transferred funds from his mother’s account and used the money to repay some debts, buy a car and carry out building works on his home. Mrs Woodward, who was living with her son and reliant on him for care, was said by the son to have given him the large sum of money, even though he was her financial administrator and this was a conflict of interest transaction. After the mother died, the matter was taken to the Supreme Court by the executor of her estate, where the Court observed that the financial manager had been totally ‘oblivious to the restrictions on his authority and to his obligation to account’.[26]

6.21       The ALRC has also heard about appointed guardians blocking the access of family members, friends or care-givers to older persons. Access may be denied so that the guardian can keep control over the person and the flow of information, particularly regarding the guardian’s conduct. The Law Council of Australia provided the following case study:

A professional Guardian arranged for the admission of an elderly woman into residential care. The Guardian gave directives to the facility that the woman would not be able to receive visitors, including her relatives and neighbours. The Guardian did not want the woman to know that her house was being sold and to get upset.[27]