Out of the shadows, part two: Difficulties in identifying elder abuse

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.” 

Read more:

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