Financial elder abuse and the importance of enduring documents

Financial elder abuse and the importance of enduring documents by The Hon Dr Kay Patterson AO

During my term as Australia’s Age Discrimination Commissioner, I have chosen to focus on three priority areas—age discrimination and the workforce, older women’s risk of homelessness and elder abuse in the community.

In the area of elder abuse, I have been advocating for the implementation of the recommendations in the 2017 Australian Law Reform Commission (ALRC) report, Elder Abuse—A National Legal Response. The Compass website is a result of one of the ALRC recommendations implemented by the Federal Attorney-General’s Department—so I am honoured to be a guest editor this month.

Elder abuse often starts with ‘benevolent ageism’; where attitudes tip the scales towards protection and away from respect for an older person’s independence and autonomy. For example, limiting an older person’s social interactions or activities in ways that go beyond public health advice during COVID-19.

When taken to an extreme, these attitudes can result in elder abuse, leading to real harm to the older person; be it financial, physical, psychological, sexual, neglect, or a combination of these.

While there is currently no conclusive data on the prevalence of elder abuse in Australia, based on World Health Organization (WHO) research, it is estimated that between 2% and 14% of older Australians experience elder abuse in any given year. To remedy this data gap, the Federal Attorney-General’s Department has funded the Australian Institute of Family Studies (AIFS) to conduct a prevalence study—another of the ALRC’s 43 recommendations.

In the interim, thanks to research by AIFS, we do know that financial abuse is the type of elder abuse most commonly reported to helplines (38% of calls)— and that’s why I’ve chosen to focus my article on this topic.

There are six key risk factors that are generally accepted for financial elder abuse:

1. a family member having a strong sense of entitlement to an older person’s property or possessions, often due to financial pressures in their own life

2. an older person having diminished capacity

3. an older person being dependent on a family member for care

4. a family member having a drug or alcohol problem

5. an older person feeling frightened of a family member

6. an older person lacking awareness of his or her rights and entitlements

I am concerned that the increasing financial stress caused by the economic impacts of COVID-19 is likely to increase incidents of financial elder abuse. I am hearing more and more troubling stories from peak bodies and frontline workers of incidents ranging from pressure to change wills to misuse of bank accounts and powers of attorney.

In many parts of Australia (although not all) helpline calls have gone up dramatically. One frontline service I spoke to experienced an increase of 40% in the first half of this year, compared with last year.

I have also heard from many lawyers about an increased demand for enduring documents, including wills, powers of attorney and advanced care directives, as well as changes to mortgage documents.

In response to this increased demand, NSW and Victoria passed temporary COVID-19-related legislation recently to make electronic signing of enduring documents easier and loosen restrictions around witnesses. Queensland, Tasmania, South Australia and ACT have passed similar temporary legislation—the specifics vary state by state. While there are benefits, I am concerned that an unintended consequence could be an increase in financial elder abuse.

I encourage people of all ages to have their enduring documents in place, but it is vital that these reflect the wishes and interests of the older person, not of those around them. I continue to be reminded whenever I speak publicly that many people are not aware that a power of attorney can be revoked.

These documents are important tools in protecting the rights of older Australians—but it would also be much easier to protect those rights if we harmonised powers of attorney legislation across jurisdictions to remove the existing loopholes. The current inconsistencies across jurisdictions cause confusion in the community, make it difficult for families to understand the rules, and for experts to provide advice across jurisdictions. They also impede cooperation between state and territory public advocates in investigating instances of abuse of an attorney’s powers.

One single national legal document would make it easier to inform older Australians of their rights, as well as to educate those undertaking powers of attorney of their responsibilities.

We also need to establish a national online register of powers of attorney. Nationally consistent laws pertaining to enduring powers of attorney and a national online register are ALRC recommendations that still need to be implemented. With the increase in financial elder abuse we are seeing during COVID-19, there has never been a more urgent need to do this.

During COVID-19, many banks are encouraging people without online accounts to set up online access. An unintended consequence of this move to online banking for some older people is that it could exacerbate their risk of financial elder abuse. While many older people are technologically savvy, those who don’t already have access to online banking may be less confident with using internet-based services. Seeking assistance and support from family members can risk providing access to their passwords and accounts to people who would not ordinarily be authorised to do so.

During the pandemic, we need to strike a balance between protection and autonomy. In this environment, it can be a lot easier for family members to take decision-making away from older people. Those of us working around elder abuse need to be aware of this as COVID-19 adds another layer of risk.

My message throughout the pandemic continues to be one of solidarity. We need to focus on how those of us working on elder abuse advocacy, prevention and support can still get the message out, so that older Australians know they are not alone at this challenging time.

The Hon Dr Kay Patterson AO is Australia’s Age Discrimination Commissioner

If you experience, witness or suspect elder abuse, you can call the National Elder Abuse phone line free and in confidence for information, support and referrals.

The National Elder Abuse phone line is 1800ELDERHelp (1800 353 374).

About the Hon Dr Kay Patterson AO

The Hon Dr Kay Patterson AO is the Age Discrimination Commissioner. Kay began her role as the Age Discrimination Commissioner on 29th July 2016. She has demonstrated a strong interest in the issues affecting older people throughout her professional life. In her role, Kay’s focus is on the rights of older workers, the blight of elder abuse and the need to encourage innovative solutions to homelessness and the risk of homelessness amongst older Australians.