Vulnerable and frightened older people can be taken advantage of by those who are supposed to be protecting them. Is it time for an Older Person's ombudsman?
Elder abuse takes several forms from physical to financial to psychological and deprives older people of their freedom, their rights and their dignity.
This week The Law Report looks at how the law tackles fraud, forgery and filching in the art world. First though, we look at an emerging legal specialty to protect the rights of the older person: Elder law!
Susanna Lobez: One example of problems faced by older people is the incidence of what's called elder abuse. What are we talking about here? What kind of examples of elder abuse have you come across, Brian? (Brian Herd specializes in Elder Law - Queensland, Australia)
Brian Herd: I've come across many examples Susanna. An elderly woman in her 90s in Brisbane was deposited furtively one night by her daughter, at the front door of a nursing home in Brisbane, with a small bag of personal items and a blanket, and left to fend for herself. She was discovered at sunrise by the staff of the nursing home, curled up in a foetal position on the doormat. And this incident represents just one obvious example from my experience, of a much larger gamut of elder abuse, which exists in society but which for the most part remains unreported. You may have heard the old saying, Susanna, 'It's against the law to neglect your child and your pet, but not your mother.'
Susanna Lobez: Who are the abusers likely to be?
Brian Herd: Well the person doing the abusing could be anybody. It could be a spouse, a grandchild, a son or daughter, or other family member, a friend, a neighbour, it could be a financial planner, it could be an attorney, it could be the government. There really is no limit. I've even seen cases where churches have abused older people. There was a recent example, a woman's husband died, his church members came to her assistance and helped her to cope with his death. As a trade-off, the church group became possessive and she signed over her home to them and her pension. The church requested also that various families moving through the district stay with her, and she often had families moving in and out from one week to the next. The church of course saw it as welfare, but she saw it as extremely distressing.
Susanna Lobez: Well that moves us right into the area of financial abuse. What kinds of examples of financial abuse should older people be on the lookout for?
Brian Herd: The most common form of financial abuse can extend from downright criminal conduct, where someone actually steals money from an older person, to a misuse for example, of such devices as the enduring power of attorney. Power of attorney, as many people might know, is where you appoint someone to make decisions for you. Now traditionally, the law says that power of attorney is void and comes to an end once the person who's given the power becomes incapable. So they've introduced what's called an enduring power of attorney, which the name suggests, endures. In other words, once a person becomes incapable, the power of attorney continues on, and endures through that person's incapacity, which is exactly when you want of course, the power of attorney to exist.
Susanna Lobez: So it might have been used in the past to perhaps if a parent was going overseas, they'd leave their adult child in charge of their bank matters, and mortgage payments etc. but you're saying this enduring power of attorney carries on, even if the older person becomes incapable of making their own decisions.
Brian Herd: That's right. The difficulty then becomes in many cases of abuse, that because the person has lost their capacity, they've lost the capacity to revoke the enduring power of attorney. So it can literally last forever.
Susanna Lobez: So what could the relative or trusted friend do under an enduring power of attorney that might jeopardise the life or lifestyle of the older person?
Brian Herd: Well what you've got to understand is that certainly in Queensland for example, the power that an attorney has under an enduring power of attorney, are extremely broad. They can make decisions, for example, about where they live, with whom they live, what they eat, what they wear, whether they have sex with someone. I saw a recent example from a nursing home where an enduring power of attorney who was the daughter of a demented resident, directed the nursing home that a particularly elderly Lothario who was attending his wishes onto her mother in the nursing home, should be deprived of any contact with her mother because she didn't believe her mother should, in her condition, be having any sexual relationships with another person in the nursing home. So you can see in particular that the power that the attorney has is so broad that they can virtually control the whole of a person's life, with the power and the decisions they can make on behalf of that person. Misuse can extend to using the power of attorney like a blank cheque. Many unscrupulous people who have the power can simply see it as a power to start writing cheques for themselves. There's a recent example for example, of a son of an elderly person who'd been given the power of attorney. He took the decision that because he was spending a considerable amount of time in administering and arranging his mother's affairs, that he should pay himself a fee for the service he was providing. So he regularly drew a large amount of funds from his mother's bank account to pay himself this service fee in the belief he was entitled to do so, which of course he wasn't.
Susanna Lobez: Are enduring powers of attorney something that should be avoided like the plague?
Brian Herd: Well no. While much of what I've accounted may appear to be more like segments from a horror story, I'm firmly of the view that an enduring power of attorney is an essential component of every person's life, be they young or old. All it means however, to protect against the potential for abuse is to make sure you're prudent in what you do when you make an enduring power of attorney. Prudent in terms of who you appoint, prudent in terms of how many people you appoint. For example, it may be wise to appoint two people as opposed to one. And prudent when considering for example, what limitations you might impose on your attorney to make sure they do the right thing by you.
Susanna Lobez: So that might be for instance insisting that your attorney consult with your accountant before making any financial decisions or taking any dramatic financial steps?Brian Herd: That's exactly right, that would be in fact the most common limitation that people do put in enduring powers of attorney to make sure the attorney consults, so at least someone else knows what the attorney is doing or proposes to do.
Susanna Lobez: Now what about the other side of the spectrum, Brian, where elderly people have no relatives or anyone they can really trust.
Brian Herd: Well in Queensland, certainly a person can appoint a public official known as the Public Trustee, as their enduring attorney. They can also appoint another person in Queensland called the Adult Guardian who can make decisions about their personal and health care concerns. So those bureaucrats can be appointed to make those decisions, and in many cases they do a good job, but in a lot of cases as well, because you are really part of a bureaucracy, there tends to be a concern about the ability of these particular officials to make both decisions that are in the best interests of a particular person, and also to make sure that they consult with perhaps other people who should be consulted before decisions are made.
Susanna Lobez: What should older people do if they think they are being taken advantage of, and what should others do if they think their elderly neighbour or more distant relative is really being treated badly?
Brian Herd: I think the best way to prevent abuse is important for ensuring to keep a network of support with friends, neighbours and family members, to be active in the community as much as possible, and a person should be nothing less than robust in seeking advice from others and making plans in relation to their financial living arrangements where necessary. Just talking to someone about it can be an important step. I don't want to sound patronising, but there are disturbing similarities between child abuse and elder abuse; both the young and the elderly are vulnerable to manipulation and exploitation, they can have little ability or inclination to complain about abuse, they often have very few discrete and effective avenues of complaint apart from the traditional law enforcement recourses which can be intimidating and unresponsive. They often feel that the perceived consequences of complaining can far outweigh the consequences of the abuse, so they stay mum.
Source from the ABC Law Report Program Transcript
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