It’s distressing that there needs to be an awareness day for elder abuse. But, as an indication of the size and global reach of the issue, the United Nations General Assembly has designated 15 June as the annual World Elder Abuse Awareness Day – a day for the world to voice its opposition to the abuse and suffering inflicted on our older generations.
As with others around the world, at Snedden Hall & Gallop we’d like to raise awareness of the mistreatment and gutless abuse of older members of our community.
What is elder abuse?
The World Health Organisation (WHO) defines elder abuse as ‘a single or repeated act, or lack of appropriate action, occurring within a relationship where there is an expectation of trust, which causes harm or distress to an older person’. This is the most widely accepted definition, and at its core is the expectation of trust.
Elder abuse is not necessarily the infliction of physical harm on a vulnerable elder. Abuse can include any behaviour or action that harms an older person, such as:
- financial abuse
- psychological abuse (including social abuse)
- neglect
- sexual abuse (including non-physical actions such as obscene language)
- chemical abuse (including inappropriate use, underuse or overuse, of prescribed medication).
Who commits elder abuse?
Sadly, it is generally family members, friends, paid carers and paid professionals who commit elder abuse, not unknown perpetrators.
As people generally hand over authority to make decisions for them – in the event of incapacity – to those who they implicitly trust, this is of great concern.
How can I avoid elder abuse?
Sadly, there is no means by which abuse can be avoided altogether. However, one way to reduce the likelihood of elder abuse occurring is to make an enduring power of attorney (EPA). This important legal document gives you the power to specify a person who will manage your affairs and make decisions on your behalf. These people are known as attorneys.
EPAs
It’s important to think carefully about who you should appoint as your attorney. Sometimes it’s a good idea to appoint more than one attorney so that there are checks and balances on how each attorney is exercising their power. You may even consider appointing one person to preside over personal care or health care decisions, with another person to attend to financial and property matters on your behalf.
The attorney can make decisions on your behalf regarding personal care or health care matters only in the event of cognitive incapacity caused by conditions such as brain damage, dementia, unconsciousness, Alzheimer’s or serious injury. Whether or not you are incapacitated is determined by a test performed by a geriatrician or another suitable specialist.
An EPA allows you to give authority immediately to an attorney with regard to property matters, irrespective of whether you’re cognitively incapacitated. For example, you can state that your attorney’s authority regarding property matters comes into effect immediately upon signing the document or in the event of physical incapacity. We generally advise against giving immediate authority to another person in relation to property and financial matters unless there are exceptional circumstances.
An EPA allows you to impose certain directions, conditions or limitations on the ambit of the attorney’s discretion. For example, you may give directions concerning life support (or lack thereof). Or you could specify your preferences about your residential arrangements if you’re unable to live independently. Importantly, you can also limit the types of decisions your attorney can make on your behalf.
You can read more about EPAs and elder abuse here.
What can we do about elder abuse?
In October 2018 the Royal Commission into Aged Care Quality and Safety was established, which has ensured that the issue remains in the public eye, and that it is fully investigated.
Prior to this (in June 2017), the Australian Law Reform Commission (ALRC) released Elder Abuse – A National Legal Response. This report included 43 recommendations that are intended to acknowledge and protect the dignity and autonomy of older Australians.
You can read more about the ALRC report here.
We hope to see some promising changes to this area of law to increase protections for elders soon.
How can we help?
It’s important that your friends and family respect the choices you make concerning your affairs later in life. Even if they don’t necessarily agree with your choices. We can work with you to create an EPA to ensure that your wishes are communicated and documented.
Our Wills & Estates & Elder Law Team can assist you if you harbour concerns that elder abuse may be occurring to you or to a loved one.
At Snedden Hall & Gallop, we have vast experience in ensuring that our clients are supported in the creation of their important personal documents, including wills and EPAs. In addition, we have a strong litigation team who can assist you if an attorney misuses their power. Please contact us by phone on 02 6285 8000 or by email.
