ELDER LAW – ELDER ABUSE
One burgeoning area of the law that will affect us all in our old age is Elder Law, now seen as a discrete and specialised area of the law.
The fact is that around 30 per cent of the Australian population is made up of seniors and baby boomers – the age cohort between 1946 and 1954. The percentage of seniors or elders is only going to increase due to falling birth rates, the “baby boomer” generation getting older, and people living longer.
“Elders” are generally defined as 65 and over. Some Elders of course have no physical or mental impairment and are entirely independent. Others have physical and/or cognitive impairments which results in impaired decision making capacity and dependence on others.
There are a lot of things to consider in old age, making a will, appointing a Power of Attorney, making an Advance Health Care Directive, and choosing a retirement village just some of the many.
Unfortunately the reality is that as the population of the elders increases, the incidents of elder abuse are set to rise. We have all heard horror stories of the elderly being abused. Sadly, abuse of the elderly can take several forms including a lack of for their rights, emotional and physical abuse, neglect, psychological abuse and financial abuse whereby a family member may strip bank accounts or sell property.
It seems that on many occasions, people appointed as attorneys do not fully understand the obligations imposed upon them, to act in the interests of the adult with impaired capacity. These are clearly set out in the Powers of Attorney Act and are available for download or viewing at www.justice.qld.gov.au. When appointing an attorney, consideration must be given to ensuring, as far as you can, that a person is appropriate and has the skills to act honestly and with reasonable diligence to avoid a situation of neglect or abuse.
While there are currently no laws in Queensland specifically relating to Elder abuse, there are the protections of the Criminal Law, Common Law and Equity; and of course, the statutory protections such as the Powers of Attorney Act, the Guardianship and Administration Act, the Peace and Good Behaviour Act and the Domestic and Family Violence Act.
There is no mandatory reporting of elder abuse in Queensland although there is a limited form of mandatory reporting of elder abuse in aged care facilities pursuant to the Commonwealth Aged Care Act.
There is no doubt that Queensland and Australia are lagging behind the world in taking steps to enact legislation to specifically protect our vulnerable elderly. Currently, there are various reviews underway and reports being prepared to consider the adequacy of the law as it stands at present.
I discovered that the situation in the United Kingdom is the same as Queensland, while the nations leading the world in the law in this area are South Africa, Canada and the USA. These countries have all enacted specific legislation to protect vulnerable older persons from abuse. The most innovative and extensive legal regime in operation is in fact in the united States of America which has both Federal and State laws. There are also specific Elder Abuse Courts which have special evidence rules for older people.
We can only hope that Queensland is proactive in the short term and enacts suitable, specific legislation to protect our elderly from abuse. As we approach old age, we may end up requiring the benefit of such legislation.
If you are aware of any form of elder abuse there are several government agencies that can assist.
- The Guardianship and Administration Tribunal which can act when informal arrangements are inadequate and a formal process is required to protect the interests of a person lacking capacity - www.gaat.qld.gov.au
- The Adult Guardian whose main role is to police enduring powers of attorney and to protect the rights and interests of adults who have impaired capacity - www.justice.qld.gov.au
- The Public Trustee which can act as Administrator to manage a person’s financial affairs - www.pt.qld.gov.au
Other Services for Elders are:
Qld Aged & Disability Advocacy - 1800 818 338
Aged Care Assessment Teams – Consult your local phone book under “Age” page
Elder Abuse Prevention Unit - 1300 651 1192 or www.eapu.com.au
Seniors Enquiry Line - 1300 135 500CHRISTINE MATSINGER
McCOLM MATSINGER LAWYERS
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