97 Over $2 trillion are held in Australian superannuation funds, and a significant portion of the wealth of older people is held in these funds. Abuse of an older person may include the use of deception, threats or violence to coerce the person to contribute, withdraw or transfer superannuation funds, to spend those funds in a way that benefits the abuser, or even to make a binding death benefit nomination in favour of the abuser. Other issues relating to possible elder abuse include questions about the ability of a person acting under a power of attorney to deal with superannuation.
Regulation of superannuation
98 The Australian Prudential Regulation Authority is the prudential regulator for the superannuation industry, other than self-managed superannuation funds. Self-managed superannuation funds are supervised by the Australian Tax Office.
99 The Australian Securities and Investments Commission is responsible for consumer protection with regard to superannuation. It is concerned with the relationship between superannuation trustees and consumers, and aims to ensure members receive proper disclosure, useful information, and can access complaints- handling procedures.
100 The Superannuation Complaints Tribunal deals with complaints about the decisions and conduct of trustees of superannuation funds.
101 None of these agencies is responsible for addressing concerns about the coercion of an older person, or the misuse of a power of attorney, with regard to their superannuation funds. Such concerns are largely the domain of state and territory laws, including:
- criminal laws regarding assault, theft or fraud;
- statutes regulating the use of powers of attorney; and
- equitable remedies for breach of fiduciary duty.
102 These state and territory laws are discussed in more detail elsewhere in this Issues Paper. The ALRC is interested in comment as to whether these laws are an adequate response to elder abuse in the context of superannuation funds.
Question 24 What evidence is there of older people being coerced, defrauded, or abused in relation to their superannuation funds, including their self-managed superannuation funds? How might this type of abuse be prevented and redressed?