26/07/2010
The estimate from the Elder Abuse and Prevention Unit, published in a new Queensland Law Society and Public Advocate of Queensland paper, highlights a key area where existing laws are failing seniors.
The paper looks at issues including whether Queensland law should criminalise the abuse of older people in the same way as abuse of children or people with intellectual disabilities.
It argues the increasing incidence of financial abuse alone shows the law has not developed quickly enough to provide “realistic, accessible and appropriate” remedies for elder abuse victims, and does not provide a deterrent for financial abuse or properly compensate for the pain and suffering victims endure.
Anomalies which make it hard for older people to prove abuse under current laws include a legal presumption that the transfer of an asset from a parent to a child is a gift unless the older person can prove no gift was intended.
The paper argues that while our laws developed during an era when people had shorter life expectancies and were less likely to become dependent on others, longer life expectancies had led to increasingly complex financial relationships within families.
“In light of these factors, the potential for undue influence has increased significantly,” it says.
The report says in cases of physical, sexual and psychological abuse, changes to Queensland’s personal injuries law in 2003 had left older people disadvantaged when seeking compensation by effectively abolishing punitive or aggravated damages.
“Other heads of damage which might be significant for a younger person are generally of little relevance for an older person,” the report says.
“The Civil Liability Act also restricts the general damages component of personal injuries claims. The result is a system which does not provide for adequate compensation of older victims by perpetrators of elder abuse.”
While the guardianship system provides some protection and controls over people with enduring power of attorney, “financial abuse of older persons with impaired capacity occurs regularly, whether unintentionally or deliberately perpetrated”, the report says.
There are no mandatory reporting requirements in Australia obliging financial institutions to report financial abuse, or for any other agencies to report suspected abuse, except in the case of physical or sexual abuse in aged care facilities.
“If older people (regardless of their capacity) are considered generally vulnerable, this has not translated into the creation of specific offences to criminalise their abuse, neglect or exploitation,” the report says.
“Although controversial, the question should be asked about whether the vulnerability of older persons generally is not viewed as seriously as that of other groups of vulnerable people.
“In the absence of specific protections in criminal law, is elder abuse given moral value equivalent to other forms of abuse?”
The paper recommends consideration be given to the introduction of specific elder abuse offences, reflecting the approach taken in the United States.
Queensland Law Society Elder Law Chair, Brian Herd, said the issues paper argued for a multi-agency approach to the issues and consideration of legal reform where appropriate.
“A number of other countries have introduced specific laws and changed others to make it easier for (financial abuse victims) and those suffering other forms of elder abuse to not only access help, but to assist them through any legal process that may follow,” Mr Herd said.
“The aim of this paper is to get people talking and thinking about these sorts of issues and how our laws can be changed to make them more relevant and accessible to the elderly.”
The issues paper is at qls.com.au Submissions or comments should be emailed to policyreform@qls.com.au or posted to Patrese McVeigh at Queensland Law Society, GPO Box 1785, Brisbane 4000.
Phone 3842-5888.
SOURCE: The Senior
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