By Wendy Yang -
On 15 June every year, communities around the world come together to mark World Elder Abuse Awareness Day (WEAAD) and stand together against the “abuse, mistreatment and neglect of older people.”
Elder abuse exists in different forms, from financial, physical and sexual abuse to neglect and psychological abuse. The statistics and research in this area highlight a need for further action to be taken.
Sadie Davis is a senior lawyer at Justice Connect, part of the health justice partnership. She explains that the Elder Abuse Prevalence Study found that 66 per cent of people who reported elder abuse reported it to a health worker and only 15 per cent of instances were reported to a lawyer. “The idea is that older people are reporting abuse to health workers, and we are meeting them where they are.
“The idea of a [health] partnership is that the elder abuse is identified within a health setting that the older person trusts and the lawyer is part of that multidisciplinary team at the hospital…,” she says.
Davis has an office at St Vincent’s and regularly attends casework meetings at the geriatric ward, as well as the older persons mental health and transitional aged care program. “The idea of the health justice partnership is to have a lawyer embedded in the team.
“We provide education to health staff about the dynamics of elder abuse, how a lawyer can help, how to identify elder abuse and we also do secondary consultation,” she says.
Often a health worker may contact the service and seek guidance or assistance as to how to approach a situation or who to refer the older person to for help.
Although there are different types of abuse, Davis explains that the service mainly deals with financial abuse. “[O]ur education focuses on all those types of abuse, but our focus is on financial abuse. That’s where …most legal remedies are, in prevention and response,” she says.
Davis shares the story of “Mary” who was referred to the service through the transitional aged care program. Mary was residing at home with her son “Terry.” Her son had separated from his partner and moved back home. Mary had appointed Terry as her attorney a few years ago and although things started out amicably, Terry started drinking heavily at home. Terry was also a gambler and was in debt. Unbeknownst to Mary, Terry used the power of attorney to take out a loan in Mary’s name. When Mary discovered this and confronted Terry about the loan, he threatened to cut off Mary’s contact with her grandchildren.
Davis points out that in this scenario, “there’s the psychological abuse, the yelling at home, the threats to cut off contact with the grandkids, the financial abuse. Unfortunately, the power of attorney was used to perpetrate abuse, which is a risk…,” she says.
Davis explains that they were able to help Mary by advising her of the apprehended violence order (AVO) process and putting Mary in contact with the police. They also assisted Mary to revoke the power of attorney and appoint someone else more suitable. “I think that’s a really important part of what we do, because we’re experts and we have skills in this area. Part of our role is to be able to explore options with clients … to appoint suitable people. [W]e were able to put her in contact with one of our pro bono partners. …
“[T]he work of private lawyers in this context is really important and [we are] really grateful to those firms who offer their assistance to help people like Mary,” says Davis.
Sadly, Mary’s experience is not an uncommon one. For older people, when it comes to deciding who to appoint as an attorney to act on their behalf, children are often the first class of people older people consider. “Children are the people you look to, but unfortunately, they’re also the most common perpetrators of abuse,” says Davis.
One of the things she discusses with clients is to think about people in their life who they trust and evaluate whether the person possesses the necessary qualities, skills or vocation that might make them an appropriate candidate. She says that it is important to consider the following questions or factors before deciding whether to appoint a person as your attorney: “[W]hat are their attributes? Do they have any professional skills that might make them suitable [for] making health decisions, being appointed as an enduring guardian or as an enduring power of attorney?
“[A]re they people that are worthy of trust … how long have you known them for? … Are they a person, a friend, that you’ve known for a long period of time or are they recently in your life? What have they done to show you that they are a person deserving of your trust?”
Davis admits that after working in this space for a while, you start to develop a sense of what a person is like. She prefers to meet and talk to the attorneys and guardians before the documents are drawn up as “you get a sense of people … and what their motivations are. So, why does this friend of three months want to become your attorney?” she says.
Davis also points out that although children are often the obvious choice when it comes to selecting a guardian or attorney, there are other people who may be appropriate. “It can be a friend, it can be a neighbour … it’s a process, I think, to be able to determine who … has the suitable attributes,” she says.
When an older person seeks assistance, the perpetrator may attend the appointment with them. As Davis points out, “as a lawyer, you should always get instructions from your client directly … it might be a bit awkward, but you absolutely have to ask them to leave. …
“I think that’s also why referrals through a health justice partnership (are)so important … [when the older person comes] to [the] hospital, they are without the perpetrator.
“They’re able to disclose freely what’s happening at home, so it’s a window of opportunity that is identified in a hospital environment…,” she says.
Davis explains that a significant portion of work that they do revolves around future planning and research in this area shows that having the proper documents in place can provide a safeguard against elder abuse. “We’ve got a great resource called the ‘Conversation Guide’ which is about having conversations with older people about their future planning. [W]hilst power of attorney can be used to perpetrate abuse, they’re also a really good preventative tool,” she says.
When it comes to the remedies available to victims of elder abuse, there are a few options available depending on the type of abuse. According to Davis, if a loan has been taken out by the perpetrator of the abuse on the victim’s behalf, or if a debt has been incurred on the older person’s behalf, the older person can seek to get the debt repaid through a letter of demand or a Statement of Claim.
“We would certainly seek assistance from our pro bono partners … unfortunately our resources are fairly limited so … [for] more litigious matters, we’d certainly try to get the assistance of one of our pro bono partners,” she says.
Similarly, the older person can seek to have any existing powers of attorney and guardianship appointments revoked.
Davis acknowledges that there are other remedies available to victims of elder abuse and says that it’s great that the Law Society of NSW is launching a new accreditation in this field. “[Y]ou do really need lawyers who are experts in this area, particularly around the dynamics of elder abuse. I think our role as lawyers is really important in order to prevent and respond to these issues. [H]aving skills to be able to identify that it’s happening … it’s a live issue,” she says.
