industry & reform
‘ Protecting the vulnerable ’
Experts call for a national model to combat financial abuse .
By Eleanor Campbell
The nation ’ s top legal and ageing experts are calling on the commonwealth to enact nationally consistent laws to prevent elder financial abuse .
President of the Law Council of Australia , Dr Jacoba Bransch QC , convened a national roundtable in July to draft the core principles for new federal legislation .
Key bodies including the Age Discrimination Commissioner , the Council on the Ageing and the Australian Law Reform Commission all agreed that varying state laws created confusion and led to the exploitation of older people .
“ We need consistency across the states and territories with their legislation that creates enduring powers of attorney ,” Dr Bransch told Aged Care Insite .
“ Every state and every territory think their legislation is terrific and fit and appropriate , but we ’ ve got to step away from that and actually look at the greater good of protecting the vulnerable .”
In Australia , documents that create the enduring power of attorney ( EPOA ), which gives one the power to make financial and legal decisions on behalf of another , differ from state to state .
According to Dr Bransch this is a significant barrier for older Australians who may wish to update , amend or revoke their EPOA .
“ People travel , and just because you ’ re elderly doesn ’ t mean you ’ re going to stay in Brisbane or Sydney all of your life ; you might go and live with family in other parts of our country ,” Bransch said .
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“ Once we ’ ve got consistency , then we need a national register so they are truly transportable .”
Dr Bransch said implementing a national register for EPOAs , similar to the domestic and family violence scheme implemented in 2017 , would improve statewide protection for victims and promote accountability .
Another significant issue according to Dr Bransch concerns the improper monitoring of EPOAs state to state , which can see a person overseeing another ’ s finances reviewed only every few years .
“ There should be regular reviews , every guardianship tribunal , however named around the country , should be having reviews ,” said Dr Bransch .
Different definitions around elder abuse , what constitutes as having capacity to make decisions , and requirements for attorneys or guardians also vary in each jurisdiction .
This creates confusion and a lack of awareness , often leading to family members not understanding that they are committing acts of financial abuse , said Dr Bransch .
“ A lot of them simply don ’ t understand what it is they are meant to do and what they ’ re not meant to do , so there ’ s a real education problem there .
“ There ’ s basic principles that people need to understand . You can ’ t take mum or dad or your uncle ’ s money and put it in your bank account , even if you ’ re using it to go shopping for them .
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A lot of it ’ s a lack of understanding , but some of it is frankly malevolent .
“ A lot of it ’ s a lack of understanding , but some of it is frankly malevolent .”
A COMPLEX ISSUE Financial abuse is the most common form of elder abuse in Australia .
Australia ’ s first laws to criminalise financial elder abuse recently came into effect in the ACT , with convicted offenders facing up to three years in jail .
Since most cases go unreported , there is little national data to paint a clear picture of how often it occurs .
It is estimated by the Australian Banking Association that around 1 in 10 Australians will experience some form of elder financial abuse . Dr Bransch , who practises in family law , believes these figures may be greater .
“ It ’ s a hidden thing and that ’ s part of the problem .
“ It ’ s not unusual for the older person who is being financially abused to be embarrassed , and not wanting to go to the police or not wanting to go to their guardianship tribunal . “ There ’ s also an element of , ‘ We ’ ve got it , keep it within the family ,’.
Family conflict , higher dependence on others and isolation are leading risk factors behind elder financial abuse , according to the latest research . Increased seclusion and higher rates of domestic violence triggered by the COVID-19 pandemic has also led experts to express concerns about older people ’ s safety .
“ Adult children suddenly have millions in super which they ’ ve never earnt , and you look at the bank statements and it ’ s mum and dad ’ s super that ’ s suddenly become the adult child ’ s ,” said Dr Bransch .
“ Or the houses that get signed over to the person who should be making decisions that benefit the adult . “ It ’ s appalling .” The Law Council of Australia is working in consultation with the roundtable to ramp up pressure on the federal government .
Dr Bransch says that she sees benefits , not barriers , to pushing these reforms through in the future .
“ If people can come together , if the attorneys-general … can put it on their agenda and come together as one then it will be of great benefit to our elderly in Australia .” ■