Out of the shadows: Lawyers on the front line against elder abuse

Sometime in the night between 23 and 24 July 2010, Janet Mackozdi died freezing and alone in a shipping container that had been converted into living quarters. In the morning of 24 July, she was found dead by her son-in-law, but her death was not reported until five hours later. She was 77 years old. 

An expert report prepared by the University of Tasmania assessed on the night Janet Mackozdi died, the temperature inside the shipping container was between -1.0 and 2.9 degrees Celsius. A coronial inquest held into her death determined that her cause of death was hypothermia caused by environmental cold exposure and the autopsy found she weighed only 37.9 kilograms. Her daughter and son-in-law were charged with manslaughter. They pleaded guilty and were sentenced to two years imprisonment, wholly suspended.

Elder abuse is a heinous scourge plaguing our society. The statistics for elder abuse in Australia are worrying and increased awareness of elder abuse as a serious social issue has prompted the government and peak industry bodies to investigate what’s causing the incidence of abuse to rise and what can be done to prevent it.

The federal government recognises that to tackle the issue, a unified, national approach is needed. It’s in the process of conducting a second national study to understand what’s causing the numbers to rise and what can be done to address this issue in the next decade.

Elder abuse is fuelled by a variety of factors. Recent events, such as the COVID-19 pandemic and the housing affordability crisis, are thought to be partly responsible for the upward trend. 

Record high rental costs, skyrocketing property prices and cost of living pressures are pushing home ownership out of reach for many Australians.  As a result, adult children are opting to move back home to save money. While this may seem understandable, problems arise when the relationship between the older person and their adult child breaks down.

The statistics paint a harrowing picture. Elder abuse is more prevalent in Australia than previously thought and research shows that the perpetrators of abuse are often those closest to the older person.

The legal profession is at the forefront of the elder abuse issue. Whether it’s providing legal advice or drafting documents like wills and enduring powers of attorney for clients, lawyers are uniquely placed to identify situations where elder abuse may be occurring. Given the unique role that lawyers play, there is a need to consider the problem more deeply and widely than ever before. To address this social issue, we must ask the questions: What legislative guardrails are needed to safeguard the rights of older Australians? Should lawyers adopt a multidisciplinary approach, working with health providers and social workers, to ensure that Australia’s older population is not left behind or forgotten?

Australia’s ageing population

Australia has a rapidly ageing population. According to the Australian Bureau of Statistics (2020), approximately 4.1 million Australians are aged 65 and over. It is estimated that by 2066, the number of older Australians will increase to between 8.6 and 10.2 million.

Sadly, as the number of older Australians increases, the number experiencing elder abuse is also on the rise. 

The National Elder Abuse Prevalence Study (Elder Abuse Study), conducted by the Australian Institute of Family Studies (AIFS) in 2021, found that approximately one in six people in Australia had experienced elder abuse in the preceding 12 months. This equates to a staggering 15 per cent of over 65s and the number could potentially be higher due to under-reporting.

So, 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 any relationship where there is an expectation of trust, which causes harm or distress to an older person.”

Tanya Chapman, lawyer at Baker Love Lawyers, says “elder abuse is an action or lack of action against an older person that caused them harm … in a relationship of trust.”

While elder abuse can occur in institutions and age care contexts, the data shows that elder abuse is often perpetrated by someone close or known to the older person. The most common perpetrators of abuse include an adult child, family member, close friend or neighbour. 

Staggering statistics for elder abuse

Although it may seem abhorrent to imagine that a child or family member could perpetrate elder abuse, it is more common than previously thought. The Elder Abuse Study found that one in two people who perpetrate elder abuse is a family member of the victim. The study also found that the most common forms of elder abuse are psychological abuse, neglect and financial abuse, followed by physical and sexual abuse.

The statistics for elder abuse are staggering. The Elder Abuse Study found that 471,300 older Australians had experienced psychological abuse in the preceding 12 months, 115,500 experienced neglect, 83,800 experienced financial abuse, and 71,900 older Australians had experienced physical abuse.

Family members were most likely to commit financial abuse (64 per cent), followed by neglect (60 percent), psychological abuse (55 per cent), physical abuse (50 per cent), and sexual abuse (15 per cent).

For Chapman, and other legal practitioners in this space, the results are consistent with what they perceive in their own practices. “It used to always be believed that financial abuse was the most prevalent, but I think that’s mainly because financial is the easiest to prove.

“You can point to the bank records, you can point to the fact that you no longer have your house so it’s easier to take legal action…,” she says.

Chapman has noticed a trend whereby adult children are more likely to perpetrate financial abuse. Males are more likely to perpetuate elder abuse than females, closely followed by spouses. “We’ve got this tricky area where we’ve got to differentiate domestic violence from elder abuse,” she says.

Mary Lovelock, senior solicitor at Legal Aid NSW’s Elder Abuse Service, says the most common forms of abuse that the service encounters are psychological and financial abuse, and usually together. Lovelock says “often we get adult children standing over their parents for money. … [A]bout 70 per cent of our clients experience financial abuse … 70 per cent of those perpetrators of financial abuse were adult children.”

Studies show that there is no ‘singular’ form of elder abuse, and it can take many forms. Chapman agrees. “What the statistics are showing was that psychological abuse was the most common … Where there was financial abuse, there was often psychological [abuse] as well,” she says. According to Kathryn McKenzie, acting Commissioner at the Ageing and Disability Commission (ADC), it is “very rare that we receive a report that’s only about one form of abuse.”

Cost-of-living: the perfect storm

When it comes to the most common perpetrators of elder abuse, McKenzie explains over half of the reports that the ADC receives about older people relates to their adult child or children. “Most of the matters that we are dealing with are in … a family context and … most of the matters that we’re dealing with, which is consistent with elder abuse are perpetrated by, or alleged to be perpetrated by, people that the older person trusts,” she says.

McKenzie acknowledges that this relationship of trust adds another level of complexity to the circumstances. It accounts for some of the reasons that older people are hesitant to talk about what they are going through or admit that their own child is subjecting them to abuse.

For Lovelock, something that has always shocked her is the age of the ‘adult child’. She explains that when people think about adult child, the most common assumption is that it is referring to a “wayward young person in their 20s or 30s,” she says. However, “most of our clients are sort of 75 to 85 years … so when we’re talking about adult children, they’re invariably in their 50s, sometimes 60s or even 70s…,” she says.

Lovelock has witnessed the different ways in which elder abuse, involving adult children, can play out. She describes one of the most common scenarios that she encounters is an adult child who moves back into the family home and their presence impacts on the older person and their ability to move about freely in their own home. “We see situations where adults are now living in the garage or a studio without bathroom facilities, older adults … are locked in the family home … and it’s unsafe for the older person to remain staying there,” she says.

Lovelock says that there may be various circumstances where the older person is at risk of ending up homeless because of their adult child. “The other pathway to homelessness is through an abusive adult child that refuses to leave the family home … they are perhaps a classic failure to launch, it might be adult children who’ve experienced a relationship breakdown, [have] mental health issues, drug and alcohol problems, loss of a job, being victim of the housing crisis in New South Wales, where they aren’t able to rent,” says Lovelock.

When asked about the factors contributing to the number of adult children returning home, Lovelock says that in the current housing situation, it is becoming more common for adult children to move back in with their parents, and the pandemic fuelled the situation.

Another common scenario is an adult child refusing to leave the family home. Despite being asked to leave, Lovelock says the adult child often refuses to, under the mistaken belief that they have some legal entitlement to remain in the home.

Lovelock notes the housing affordability crisis doesn’t affect only the younger generation, but also those in their 40s and 50s who were unable to secure permanent housing. She acknowledges that the older generations were able to secure property years ago. The property then becomes an asset and it is not uncommon for families to fight over property while the older person is still alive. “I can’t deny that it’s fuelled by factors beyond our control,” she says.

For experts, like McKenzie, who work in the elder abuse space, they witness a variety of situations play out. The ADC collects data on the number of calls made to the Ageing and Disability Abuse helpline, the relevant demographics and the nature of the enquiry. McKenzie points out that a common element featured in reports to the ADC show that where it relates to allegations of neglect, the situations can range from someone failing to meet the needs of the older person to “actively blocking the person’s access to supports and services. In some cases, that’s related to … coercive control or other forms of control where they are very tightly, kind of making the older person’s world smaller and smaller … isolating the older person as much as possible.”

McKenzie explains that in the cases reported to the ADC, another common trend is the blocking of services or behaviour consistent with what the ADC calls “inheritance conservation”. McKenzie explains this is where the family member restricts or refuses the older person’s money being used on essential supports and services, aids and equipment, and things that can help the older person as they want to ‘conserve’ the older person’s money as much as possible to increase their inheritance after the older person has passed away.

Similarly, McKenzie has also noticed an increase in ‘inheritance impatience’ and she believes the cost-of-living situation has contributed to this trend. These pressures are driving more adult children to return home to their parents. “There’s no denying the fact that older generations … typically have assets and are a source of money. … We see financial abuse … interplay [with] cost-of-living pressures and financial abuse and exploitation playing out where the older person is reliant on the pension … we are not just talking [about] the big end of town …,” she says.

The statistics tell a similar story. ADC data shows that since its establishment in 2019, reports about abuse of older people have doubled. Between July and September 2024, the ADC recorded 365 alleged cases of financial exploitation, 222 involving psychological abuse where the person made excessive or degrading demands on the older person, 201 concerning verbal abuse, 179 regarding neglect, 97 to do with misuse of power of attorney or enduring power of attorney and 85 cases involving theft.

McKenzie attributes the increase in numbers to an ageing population and the risks surrounding cost-of-living pressures. “We are [at] the start of the largest intergenerational transfer of wealth … there’s increased risks around cost-of-living pressures, housing pressures that all feed into and enhance [risk of elder abuse],” she says.

Pitfalls of granny flat arrangements

As the cost-of-living crisis and housing situation hit hard, people are looking for alternative ways to ease the financial burden. A popular option for some families is to enter a “granny flat” agreement.

Also known as an “asset for care”, the arrangement usually involves the older person transferring a high value asset, such as property, to their adult child in exchange for the right to live in the property and be cared for by the family member for the rest of their lives.

While this may seem like a good solution for both parties, problems inevitably arise when the relationship between the older person and the adult child breaks down.

Lovelock is all too familiar with this. It’s a scenario the elder abuse service often sees. “[W]e assisted a client who provided $700,000 worth of funds to their adult child for the right to be able to live in a property and be cared for in their older age,” she says.

Unfortunately, the older person was not on the property’s legal title and the relationship between the older person and their adult child soured. Lovelock says that by the time the older person approached the elder abuse service for assistance, the older person had been locked out of the property that they financially contributed to. The property was on the verge of being sold and the older person was basically homeless “… about 45 per cent of our clients present as being either at risk of homelessness or homeless as a result of elder abuse,” says Lovelock.

She acknowledges that “intergenerational housing … can be fantastic for older people when it works, but when it doesn’t work, it can be an absolute disaster. 

“45 per cent of our clients present as being at risk of homelessness or homeless. We are talking about clients who are in their 70s or 80s who have cognitive decline, have complex health issues … so their ability to recover from something like that is really limited,” she says.

Elder abuse is grossly underreported. The statistics show that two thirds of people who experienced elder abuse did not take any action. Legal experts agree that people often refrain from reporting for different reasons, and it can often be difficult to identify when elder abuse has occurred. 

They are often reluctant to obtain legal advice before transferring significant assets over to an adult child. This is risky and can put the older person in a precarious situation if the relationship breaks down. 

An example is granny flat arrangements. They present an additional layer of risk and complexity, especially if the adult child and their partner split up. Chapman explains that the older person may end up in a precarious situation as the asset may form part of the matrimonial asset pool and if the older person is not legally on the title, he or she may need to commence legal proceedings, or be joined to the family law proceedings, to reclaim the asset.  

For the elder abuse service, a significant portion of the matters that they assist with involve money and housing. Lovelock says that a common sentiment amongst older clients is “[I] don’t need to see a lawyer, my family will always do the right thing by me.

“And sadly, what we see is that doesn’t happen a lot of the time,” she says.

Difficulties in identifying elder abuse

While some forms of elder abuse are easier to identify, it can often be difficult to ascertain when abuse has occurred. In matters involving financial abuse, it may be easy to establish that abuse has occurred by following the money or paper trail. Where there has been physical abuse or neglect, there may be physical signs or clues that may alert other parties as to the existence of elder abuse. However, there are forms of abuse that are harder to spot or identify due to underreporting and the statistics show that certain groups are less likely to report elder abuse.

Culturally and linguistically diverse and First Nations people 

There is a general reluctance among older people to report elder abuse. The reasons range from a desire to protect the perpetrator to feelings of ‘shame’. In her experience, McKenzie agrees that there is an element of shame which has been a “real factor” in people from certain cultural backgrounds not reporting elder abuse. 

For First Nations people and those from cultural and linguistically diverse (CALD) backgrounds, there are various cultural reasons they might not report elder abuse or even seek help. 

As people grow older, their needs inevitably change and the level of care that they require increases with age. McKenzie finds that some people are reluctant to seek help from external services even if their needs are too much to handle. “There’s a real variety and … complexities to it and [it depends] also on the particular cultural background that the person comes from,” she says.

Around 3.7 per cent of reports to the ADC in the July to September 2024 period, related to older people who identified as Aboriginal and/or Torres Strait Islander. This was higher compared to the previous quarter (3.2 per cent) and 3.7 per cent in 2023-2024. The data also shows that in 6.4 per cent of reports to the ADC in the same period, the older person was identified as having a CALD background with the most common languages spoken at home being Greek, Arabic and Hindi.

McKenzie says that “elder abuse is incredibly broad … I think there may be a perception … that … [it affects] people of a certain socio-economic background or it’s just in certain areas. 

“What we see is incredible diversity in the individuals that are affected, the types of family situations and circumstances, the socio-economic … cultural and other backgrounds,” she says.

Lovelock shares a similar view. “[I]t’s often more difficult for clients from CALD backgrounds to talk about elder abuse … both [to] recognise it in their own circumstance and speak out about it because of cultural expectations within family that they’ll look after each other and … an unwillingness to bring shame upon the family,” Lovelock says.

“It’s difficult for anybody to speak poorly of their kids no matter how poorly they’re behaving,” she says.

When it comes to First Nations clients, Lovelock says the elder abuse service works with them to support them to do what they are comfortable doing in supporting their community. She gives the example of First Nations clients who have received Stolen Generation funds. They often feel a great responsibility to support their family to the point that they are not adequately protecting themselves. Lovelock says that in those circumstances the crucial thing is “to provide advice and support in a culturally safe and appropriate manner.”

McKenzie has also noticed a trend amongst older people from CALD backgrounds, whereby the older person is brought out to Sydney from overseas, to support the family. She explains that if the relationship breaks down, the older person is then trapped in a situation where they are providing free labour in the home and do not have access to their bank account. The ADC has dealt with cases where the older person has been barred from leaving the home. 

One of the biggest challenges for the ADC in assisting older people from CALD backgrounds, is that those holding certain visas are not eligible for income support and without that, it can be difficult to obtain emergency assistance and other forms of support.

Coercive control:  A plague on older Australians

Although coercive control is largely understood within the domestic violence context, it can often manifest in elder abuse situations as well. 

McKenzie gives several examples of how it can happen. “Older people [may be] prevented from accessing supports and services, prevented or tightly controlled in terms of who they have contact with, prevented from having contact with their friends, [with] very limited or no contact or access to the community. They may not have access to their own bank account …,” she says. Other behaviours include monitoring or tracking the older person, gaslighting or questioning their memory or undermining their confidence.

McKenzie points out that where coercive control exists, the older person tends to become very dependent on the perpetrator and it’s not uncommon for the older person to be walking on eggshells within their own home. “[T]he majority of … matters that we deal with are in fact domestic and family violence matters. What we often see is, conversations about elder abuse and conversations about domestic and family violence … they’re inherently the same,” she says.

McKenzie points out that approximately 15 per cent of the reports that the ADC receives relate to intimate partners, spouses or partners and only certain types of relationships are captured by the coercive control legislation. In the elder abuse context, the extended family does not fall within the ambit of coercive control as a criminal offence. However, McKenzie says that it may fall within the ambit of the Crimes (Domestic and Personal Violence) legislation, which allows the victim to obtain a domestic violence order and put other safeguards in place to protect the older person.

Lawyers on the front line

Legal practitioners are in a unique position as they deal with older people at critical junctures in their lives and are able to provide legal advice about the steps their client can take to protect their assets and interests.

When it comes to identifying the ‘warning signs’ of elder abuse, Lovelock says there are several ‘red flags’ that practitioners should look out for. “[If] clients come in and ask them to do some legal work that is manifestly against their best interests like transfer my own house to my adult son for nil consideration [or] something that is so manifestly against their interest, that’s a real red flag,” she says. If a lawyer is meeting a client for the first time, Lovelock says capacity can be a “real issue” and to watch out for other signs like clients changing their instructions the week after they come to see you.
There are ways that practitioners can satisfy themselves about the client’s capacity. Gerard Basha, partner at Bartier Perry, urges lawyers to ask questions and look to the intention behind a particular set of instructions. “We have a couple of matters like that at the moment where the elderly person has transferred [the property] for $1 and basically you just have to go in and undo the whole transfer … you have to show that … it could never have been in the interest of the person to transfer their property to a child for $1 no matter what might have been the agreement,” he says.

The most common form of abuse that Basha comes across in his practice is financial abuse, particularly by children who are trying to obtain an early inheritance. He points out that practitioners are starting to see more legal issues in relation to wills. “We’ve got this ageing population and people living much longer than in the past,” he says. 

There have been a number of recent court decisions involving undue influence on elderly people. There are a range of scenarios where a potential beneficiary or family members may try to influence the will maker in their favour. “[T]hat is a form of elder abuse in itself…,” says Basha. 

Older clients may approach lawyers to assist them with the preparation of wills, powers of attorney or enduring powers of attorney. This provides lawyers an opportunity to not only assess the person’s capacity but also to delve deeper into their motivation and assess whether they are being coerced or forced to do something. If the attorney is attempting to transfer property under a power of attorney to themselves or someone else they know, “as a lawyer, the warning bells should be ringing quite loudly,” says Basha.

He explains that if the benefit seems too good to be true for the person receiving it, then it probably is. “If they’re getting a property from their parents for a nominal amount, a property that’s worth $5 million, then the warning bells have to ring,” he says.

For legal practitioners practising elder law, being able to ask the right questions is crucial. Where it relates to the transfer of high value property, Basha wants lawyers to consider and ask questions like: “Who is acting for the parents? What advice have they got? Who are the attorneys for the parents? Are the attorneys acting in the parents’ best interest by embarking on this transaction? The lawyer’s got to ask questions and refuse to act if they smell a rat,” he says.

While there are some legal remedies that legal practitioners can take to recover assets for older clients including commencing court proceedings, there may be limitations as to what lawyers can do to assist older clients experiencing elder abuse. 

Chapman recounts a matter she acted in where she was called to the older person’s hospital bed. The woman had been hospitalised for malnutrition, dehydration and suffered injuries to her body including a broken ankle. Although she owned her own home, her son lived there with his partner and child. The family would not leave nor allow the woman to have visitors. When members of her church group came to the door, they would tell them that the woman was not home. 

The woman was verbally abused by the family and was often locked in her room. Prior to her hospitalisation, the woman had been locked in her bedroom for a week with only two slices of bread for the entire week. Although the matter was reported to the police, they did not act, and the son remained in the home. Chapman points out although he eventually left the property, they had to negotiate with him and offered a payout for him to leave. “Neglect happens … in the community. We see it. The remedies to address it are inadequate and … too often there is no punishment for the perpetrator,” she says.

Need for a holistic and multidisciplinary approach 

There is recognition among industry bodies, and at government level, that elder abuse is an issue and there is a need to fix it. In 2024, The Law Society of NSW announced that it will introduce ‘Elder Law’ as a new area to be added to the Specialist Accreditation scheme in response to the growing demand for legal services in this area.  

The first ‘National Plan to Respond to the Abuse of Older Australians (Elder Abuse) 2019-2023’ released by the Council of Attorneys General, recognised the need for all governments to work together in response to the growing problem of elder abuse. At the time of writing, the public consultation draft for the ‘National Plan to End the Abuse and Mistreatment of Older People 2024-2034’ was open for consultation. The second national plan has directed its focus on ways to increase community awareness, enhancement of legal frameworks, training for professionals and addressing gaps in the evidence base.

Legal experts and those who work in this space agree that there is a need for reform and are calling for specialised training for those who work with older people. Chapman supports training for anyone who interacts with older people including lawyers, especially those who deal with wills, incapacity documents or transfers of property. “You need to be on the lookout for some signs and my approach is just to be suspicious … If they have no idea why they’re sitting in front of you, that could be a flag that they don’t want to do this or they’re not making these decisions,” she says.

Chapman warns other legal practitioners to exercise caution when using templates or precedents especially for power of attorney documents as they don’t take into account the older person’s individual circumstances. “With older clients in particular, there are safeguards that could be drafted in to provide better financial security or better decision making around aged care and end of life decision making,” she says.

The legal profession should be open to collaborating with other disciplines to identify and respond to elder abuse. Collaborating with social workers, health care providers and other disciplines can help establish a relationship with the older person. Lovelock shares her own positive experiences working with a social worker in the Elder Abuse Service. “Our service has a social worker in the unit … I can’t imagine how this team would operate without a social worker, mainly because the law can be a really blunt remedy,” she says. The starting point is whether the older person is physically safe in their current situation. The second question is whether the older person wants to take any steps against the perpetrator, who may be a child or family member. 

Lovelock says that some clients may be unwilling or find it difficult to speak out about abuse and may find ways to justify or excuse the behaviour. “Often they come from [a] family dynamic where they might say it’s just the way we speak to each other,” she says. She recounts the story of one client “who would spend her day sitting at a bus stop because she couldn’t bear to be home all day … she wasn’t allowed to be in the house during the day while the daughter was awake”.

As Lovelock points out, there is no crime of elder abuse. Further action is needed to protect vulnerable older Australians. McKenzie says that people need to reframe the way they think about obtaining legal advice, or having a legal agreement in place, before entering into granny flat arrangements. She believes that rather than coming from a place of distrust, people should normalise putting a legal agreement in place to protect and reduce the risks for the older person. 

“Things will often go wrong … relationships are complex and often change.”