By Andrew Simpson
Posted June 15, 2018 05:00:00
Recently I received a call about an elderly patient believed to be the victim of financial abuse.
The patient's finances were in the hands of a relative, and it was evident that this patient had no oversight or control over what was happening with her money.
When I visited her, it was obvious that she had capacity to be making her own financial decisions, yet despite this she hadn't sighted her bank accounts in more than three years. She had no knowledge as to how her money was being used or even what was left of it.
I was approached because the nursing staff didn't know where else to go to help the patient sound the alarm on suspected financial abuse.
While I was able to provide some assistance on a legal resolution including helping to redraft the patient's will and powers of attorney documents, for her there were still a number of other more difficult issues to deal with that went beyond legal help.
This included taking back control of her finances and seeking help with accommodation arrangements when she left hospital, as she lived with the person suspected of the abuse and that arrangement was clearly untenable.
It's a story I hear all too regularly, and sadly it's an issue not isolated to the nursing profession. Where do you go to get help for suspected financial abuse?
The Australian Banking Association recently put a much needed spotlight on this issue, with bank staff often among the first to notice that something may not be right in a person's financial affairs. So too are accountants, lawyers, financial planners and social workers, but for these professionals there is nowhere obvious to go for guidance on how to escalate their concerns.
For families, it can be further difficult still — many are embarrassed or afraid to speak out for fear of upsetting the family dynamic or because they are reliant on the person suspected of causing the financial abuse.
While services do exist to help older people with financial abuse, the reality is that these operate like patchwork across states and knowing what service can best help you or even finding out what services exist can be very difficult.
This issue was also recognised by the Australian Law Reform Commission (ALRC) in its landmark 2017 report into elder abuse. The ALRC clearly recognised that the available supports come from a range of different sources — and it's hard for an individual to negotiate them without professional help.
The ALRC further recommended that every state and territory should adopt adult safeguarding laws, including the establishment of a "safeguarding agency" with the power to coordinate services for the person being abused, including reporting to police or applying for a court order if needed.
It's now been almost 12 months since the ALRC delivered its report, but despite the urgent need for action little seems to have been done to implement a safeguarding agency at either a state or national level to help people navigate through concerns of elder abuse.
Such an agency is long overdue — as my recent experience shows, there is an obvious need for an agency that can act as a first port of call, which is well versed on the maze of support services available and can help direct people to those best placed to assist.
This agency must include social workers and lawyers, and most critically it must ensure self-determination and the protection of rights for the older person concerned, including preserving their right to autonomy and independence.
It must have powers to investigate, but again it is crucial that this is done in a way that does not breach the rights of the older person concerned.
At a minimum, that means speaking to an older person directly as a first step if a concern of elder abuse is raised before taking further action — to determine if they have capacity to manage their affairs as well as seeking consent before commencing any investigation.
The agency must also ensure that those who report suspected abuse, including professionals, are protected from legal liability or other consequences. This must include relevant exemptions so professionals can report suspected abuse without fearing a breach of privacy or confidentiality, a view also shared by the ALRC.
There is a lot of reform happening in the space of elder abuse, including a recent $22 million federal funding package to better protect older Australians.
Those reforms are welcome, but the reality is that bolstering services to help older Australians risks being a wasted effort if people don't know those services exist or know how to access them.
A safeguarding agency for elder financial abuse, whether it's delivered by states or nationally, would fix that.
Andrew Simpson is the head of wills and estates law at Maurice Blackburn Lawyers.