Enduring issues – World Elder Abuse Awareness Day 2022

By Nathan Kennedy and Andrew Banks

World Elder Abuse Awareness Day, an annual international observance day recognised by the United Nations, is a time to reflect on the prevalence of Elder Abuse in our societies and consider what actions we can all take to eliminate it. Recent proposed reforms to Australia’s system of enduring legal arrangements can play a role in addressing part of these issues and begin to better protect the human rights of older persons.

In Australia, the recent Royal Commission into Aged Care Quality and Safety and the experience of older people during the COVID-19 pandemic brought many of the issues faced by older persons into the public awareness. However, the issues experienced by older persons extend far beyond the aged care sector. As detailed in the Australian Law Reform Commission’s Final Report: Elder Abuse – A National Legal Response (ALRC Report) there are different types of elder abuse. These include psychological abuse or emotional abuse, financial abuse, physical abuse, sexual abuse and neglect.

The World Health Organisation 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. It is challenging to estimate the prevalence of Elder Abuse globally, as the issues have long been unrecognised and the conduct often occurs behind closed doors. Though the Law Council of Australia cites estimates that up to 185,000 are affected in Australia each year.

The legal arrangements that are intended to provide for the protection of a person’s interests when they lose capacity to make decisions for themselves can also unfortunately be used to financially abuse older persons. These enduring arrangements differ in name and function across Australia. The Law Council of Australia and the Age Discrimination Commissioner have been highlighting the lack of safeguards in the current system for years. The ALRC Report also recommended both enhanced safeguards against misuse of enduring arrangements as well as empowering State and Territory civil and administrative tribunals to have the power to address misuse.

A key issue with the existing enduring document framework is the lack of consistency, both in form and the relevant legal tests, between the States and Territories and the lack of a National Register to enable the monitoring of these enduring powers. The ALRC Report notes:

‘An effective national register requires consistent state and territory legislation and a single model enduring document that can be registered. Multiple documents with different legal consequences would make a register unwieldy and complicated, undermining the benefits of the register.’

Over the last 12 months, Attorneys-General from every jurisdiction in Australia have been working to reform enduring document arrangements and sought public consultation early last year on a proposed National Register of Enduring powers of Attorney. We look forward to the development of the proposed National Register in accordance with the ALRC Report’s recommendations.

A number of community organisations are taking direct action to assist those affected by Elder Abuse. These organisations provide advocacy for and legal assistance to older persons, as well as calling out for law reform. Hall & Wilcox is proud to support their efforts on a pro bono basis and our national Pro Bono & Community practice has Elder Abuse as one of our key areas of focus.

We support efforts to enhance the protection of human rights for older persons and support the comments of the former UN-Secretary General Ban Ki moon on the first World Elder Abuse Awareness day 10 years ago:

‘As we commemorate the Day for the first time, let us all join in reaffirming that the human rights of older persons are as absolute as those of all human beings… I call upon Governments and all concerned actors to design and carry out more effective prevention strategies and stronger laws and policies to address all aspects of elder abuse. Let us work together to optimize living conditions for older persons and enable them to make the greatest possible contribution to our world.’