Explainer: what is elder abuse and why do we need a national inquiry into it?

Attorney-General George Brandis has announced an inquiry into laws and frameworks to safeguard older Australians from abuse.

The Australian Law Reform Commission inquiry will assist the federal government to identify the best way to protect older Australians, while at the same time promoting respect for their rights.

It is anticipated that the inquiry will report in May 2017.

Why is it needed?

There is rising concern about the incidence and extent of “elder abuse” in Australia.

The inquiry was launched in the wake of several inquiries into elder abuse in various Australian states, and an inquiry into employment discrimination against older Australians. It has also been discussed at Victoria’s Royal Commission into Family Violence. Brandis’ announcement coincided with a major national conference on elder abuse hosted by Seniors Rights Victoria.

The latest inquiry will:

… scrutinise existing Commonwealth laws and frameworks which seek to safeguard and protect older persons from misuse or abuse by formal and informal carers, supporters, representatives and others.

The inquiry will be broad in scope and consider regulation of areas of federal jurisdiction such as financial institutions, superannuation, social security, aged care and health.

As many laws affecting older people come within the purview of the states and territories – for example the regulation of powers of attorney, wills, and estates – the inquiry will also examine how federal laws interact with relevant state and territory laws.

What is elder abuse? Why is it increasing in prevalence?

Although there is no single satisfactory definition of elder abuse, it incorporates a range of physical, psychological, sexual and financial abuse and neglect.

In most cases elder abuse is invisible. It occurs within the trusted confines of family, friends, care facilities and neighbourhoods.

In a recent report, the Australian Institute of Family Studies notes that the intergenerational nature of elder abuse differentiates it from other forms of family violence. Abuse within families, particularly adult children abusing parents, is the most prevalent scenario.

It is estimated that between 2% and 10% of older Australians may be subject to elder abuse. The report predicted that the prevalence of elder abuse is expected to rise as Australia’s population ages.

However, statistics as to the incidence of elder abuse remain sketchy. It is probably under-reported. A combination of fear, shame and (some may say misguided) loyalty on the part of the affected older person sees a reluctance to seek help and contact the authorities about abusive family members.

Even if such incidents are reported, the prospect of negotiating the court system is a major deterrent for complainants. Yet if similar abuse occurred on the street, it would be reported immediately.

The reasons why elder abuse occurs are complex and varied. However, as Brandis noted, elder abuse is a “symptom of attitudes” that:

… fail to respect and recognise the rights of older Australians.

Such failure can be seen in relation to common instances of financial abuse. Australians are living longer due to improvements in health and lifestyle outcomes. This, combined with many older people having considerable assets due to the rising value of real estate and the accumulation of superannuation over several decades, can lead to an “impatience” to receive inheritances.

A sense of entitlement to older people’s real and personal property may see some adult children accessing their parents’, assets through “tactics”, ranging from emotional pleas to overt pressure to fraud.

What is likely to come from the inquiry?

The inquiry is tasked with examining myriad Commonwealth, state and territory laws. The scope of the inquiry is vast and, at this stage, it is impossible to predict the ultimate recommendations.

But there are several areas that warrant consideration – and reform – as a matter of urgency.

First and foremost, it is essential to agree on a national approach to elder abuse – with the Commonwealth, states and territories co-operating through laws.

Second, one of the main areas of concern is powers of attorney – the authority to act for another person in specified or all legal or financial matters. Such powers are often misused to perpetrate financial abuses.

Each jurisdiction has its own – often differing – legislation that regulates powers of attorney. There are considerable shortcomings in the legislation, such as that powers of attorney do not have to be registered, and are difficult to revoke. This is an area that would be ripe for a national approach, including a national register of powers of attorney.

Third, the issue of access to justice for older people should be a pivotal consideration. There is a reluctance from many older people to report abuse or, if they do so, pursue the matter through the courts. In appropriate circumstances, alternative forms of dispute resolution should be considered.

Finally, any legislative changes need to acknowledge that seniors, like the rest of us, live in a range of circumstances and come from diverse backgrounds. Therefore, their experience and understanding of elder abuse will also vary widely, particularly for culturally and linguistically diverse seniors and those living in rural and regional areas.