13 Dec 2017

As a career litigator, I have learned that resolving legal disputes – often within families and family businesses – always requires attention to the relational dynamics; the versions of history, the co-dependencies, the tantrums, manipulations and power-plays, as well as the bonds, deep loves and kindnesses.  We are at our best and worst when our legal rights are in play.

There is an increase in cases involving aged persons in varying stages of frailty, being manipulated or deceived, or just worn down, into making decisions that strip away their dignity, independence or financial status.  Or it might be that the disastrous financial decision isn’t theirs at all – it is made by, and for the benefit of, a relative or friend to whom they have entrusted everything and on whom they utterly depend.

It might be pressure or deception to sign a will or power of attorney; being pressured to take out a loan, go guarantor or provide a mortgage; living free in a person’s property and refusing to contribute or leave; controlling the bank account or access to cash or credit; or refusing to honour promises of long term care once property and cash is given over.

It can often be after the point of no return, (when there is nowhere else to turn), that finally a lawyer is asked to rescue a senior member of our community from losing their assets or savings, being frozen out of access to what is theirs, or being kicked out of the family business.  More commonly in the nick of time they are referred to us from concerned professionals – investment advisers, accountants, GP’s, aged care facilities and workers – who see that something is just not right.

Usually the victim doesn’t even know they are a victim. Or they refuse to believe it.  They may lack the ability to ask their loved ones for help, let alone instruct a lawyer. Too often, a broker or adviser of some sort has facilitated the disaster or turned a blind eye!

I’ve observed how easy it is for patterns of relationship involving aging relatives and friends to move from well intentioned “helping” to “now I’ll help myself”.  

Few believe it will happen to them or their family, but “elder abuse” is on the rise nationally as our population grows and ages. Although hidden and unreported, the best estimates are some 5% of the aged population nationally is subjected to some form of abuse or exploitation, mostly perpetrated by trusted family or friends. 

Risk factors for perpetrators include substance abuse, depression, financial stress, and financial, emotional or relational dependence. 

And that is a big part of the problem – the “risk factors” are little more than the ordinary lived reality of many, in these days of high household debt, high youth unemployment, addiction and growing mental health concerns.

The World Health Organisation’s definition of this complex social, psychological and legal phenomenon covers a multitude of everyday situations occurring in our homes, community groups, banks, farms, pubs and corner stores: “Any action or failure to act appropriately, which causes harm or distress to an older person and occurs within any relationship where is an expectation of trust.”

Each State has relevant laws, with varying degrees of effectiveness. What’s missing is a consistent, coherent national system. There are increasing calls for national safeguards. The Australian Law Reform Commission (ALRC) launched its report “Elder Abuse – A National Legal Response” on 15 June 2017, coinciding with World Elder Abuse Awareness Day.   It makes for jarring, and essential, reading.  The 43 recommendations remain there for government action.

Notable proposals include a national, searchable register for key documents such as powers of attorney; compelling banks to take reasonable steps to prevent financial abuse; training for bank tellers;  a serious incident response scheme. Sensible reform which requires state and federal co-operation.

Surely less complex and costly than an NDIS, if ever there was another worthy and achievable bi-partisan reform, this could be it.

Pending legislative change, these are my 9 tips for not falling victim to the scourge of elder abuse (some of them are easy, many are not):

  1. Consider appointing more than one attorney or guardian under your enduring powers documents. Scenario map how those particular trusted persons’ decision making on your behalf would actually work. And how it would feel. (hint: estate planning lawyers help clients with this every day);
  2. If you have some small doubt about a person’s ability to ALWAYS make decisions in your interests alone, do NOT appoint them! This is the touchstone of trust;
  3. Seek out expert legal advice on enduring powers documents and health directives, what they mean and how they work in your unique circumstances. Review these documents regularly, at least as often as you review your will. If you cannot afford to pay for advice, contact our community legal centre (and tell your local MP to fight for more funding!);
  4. Take responsibility for open communication in your family, about how assets, health, care and daily living is to be managed as matriarchs and patriarchs age;
  5. Bring to the surface, and don’t ignore, the family grievances that will only otherwise fester. Seek out professional help early and often;
  6. Be familiar with and reach out to the excellent (and under resourced) services available in WA including Advocare, Office of the Public Advocate, and the Older Persons Rights Service;
  7. Be aware of the action you can take, and take it, when something is off. For example, every power of attorney relationship in WA is subject to audit and supervision by a simple application to the State Administrative Tribunal;
  8. Be cautious and keep meticulous records when exercising power under a power of attorney. Remember you are only allowed to make decisions for the other person’s benefit, and never for your own;
  9. For our seniors, every day should be “R U OK” day! Ghandi reminded the world that we are measured by how we treat our most vulnerable.

This is general information only, and does not constitute specific legal advice. If you are concerned for yourself or a member of the community, please contact HHG Legal Group on we.help.people@hhg.com.au to book a 15 minute appointment at our free legal assistance clinics.

 

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