What is elder abuse?
The World Health Organization (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”. This type of violence constitutes a violation of human rights and includes physical, sexual, psychological and emotional abuse; financial and material abuse; abandonment; neglect; and serious loss of dignity and respect.
Elder abuse can present in different forms as indicated above and can include physical, psychological, sexual, neglect and financial abuse. It is carried out by someone the elderly person trusts, for example, a family member, a friend or a carer.
How can I protect an elderly person who I suspect is suffering elder abuse?
If an elderly person is at immediate risk of harm, you should contact emergency services in your state. Seniorsrights.org.au also offers a free and confidential helpline on 1300 368 821.
Navigating the issue of elder abuse, particularly non-physical abuse, is not easy. Each circumstance will require consideration of the facts and the wishes of the elderly person to develop an appropriate action plan.
As a preliminary step, you can seek advice from a lawyer experienced in the issue of elder abuse in Victoria.
What can I do if I am concerned about certain actions taken by an elderly person’s appointed Attorney?
Unfortunately, there may be circumstances where a person appoints a trusted family member, friend or adviser to be their Attorney and that Attorney does not act in the best interests of the person who appointed them. Sometimes, an Attorney will abuse their power and make decisions for their own benefit.
When an Attorney is not acting in the best interests of the person who has appointed them, they should be removed. This can be achieved through an application to the Victorian Civil and Administrative Tribunal (VCAT). VCAT has the power to appoint a Guardian (to make personal/ lifestyle decisions) and Administrator (to make financial decisions) for an adult who is unable to make their own decisions due to a disability.
In an application you can propose an Administrator and/or Guardian (i.e. another trusted family member, friend or adviser) who is capable, willing and able take on the power and obligation to manage the elderly person’s affairs (which could include pursing the former Attorney for any loss incurred as a result of the Attorney’s misconduct). You may also consider that an independent Administrator and/or Guardian is more appropriate in the circumstances. The final decision as to who is appointed as Administrator and/or Guardian will ultimately rest with VCAT.
Why should I appoint an independent Administrator?
In some cases, where there is no suitable family member, friend or adviser to assume the role of Administrator it may be appropriate for an independent Administrator to be appointed.
The appointment of an independent Administrator is also preferable and appropriate in circumstances where there is disharmony within a family and there is a pressing need for decisions to be made about financial and property matters.
Using an Independent Administrator can relieve relational pressures between family members during a stressful time, and provides peace of mind with the knowledge that an experienced professional is managing the situation. In addition, independent professionals such as lawyers have the experience with transparent accounting and decision-making processes to take on this role and there is regular review of all the activities of a VCAT appointed Administrator.
At Burke Lawyers, Rosy Dean, Principal of our firm is currently appointed by VCAT as an Administrator to assist with the financial and/or personal affairs of persons suffering a disability or incapacity.
As I get older what can I do to protect myself against elder abuse?
From a legal perspective there are several ways you can take to protect yourself against elder abuse whilst you are still physically and mentally fit and capable.
In Victoria, persons over the age of 18 who have decision making capacity can put Enduring Powers of Attorney and Advance Care Planning in place. There are different types of Enduring Powers of Attorney and Advance Care Planning documents. These include:
- Enduring Powers of Attorney;
- Appointment of Supportive Attorney;
- Enduring Power of Attorney (Medical Treatment);
- Refusal of Treatment Certificate; and
- Advance Care Directives.
You should obtain legal advice in relation to the aforementioned documents and give careful thought to your preferred attorneys before finalising your wishes and signing any related documents.
By putting these formal arrangements in place, you ensure and retain some control over what decisions are made about your medical treatment, personal, lifestyle and financial decisions, and also who can make these decisions on your behalf, in the event you cannot make those decisions for yourself.
Burke Lawyers Wills and Estates Legal Team
At Burke Lawyers, we have both extensive knowledge and experience relating to the challenges faced in Elder Abuse. As VCAT Appointed Administrators we can also assist in this area should it be necessary.
If you would like to discuss further or find out how we may be able to assist you, contact us today on +61 3 9822 8588 or email HERE.
