People with impaired capacity are among the most vulnerable members of our society. Much like other forms of domestic or family violence, elder abuse can be difficult to spot because of the dynamic in which it happens. It is often perpetrated by family members, carers, friends or other trusted persons.
The abuse, neglect and exploitation of older Queenslanders is a significant and growing concern. Older people with impaired decision-making capacity are particularly vulnerable to elder abuse.
Common situations where elder abuse occurs include:
- A breakdown in family agreements to lend money, build a granny flat, provide money/assets in exchange for care.
- Receipt of a carer’s pension without providing care.
- A family member (for example a son, daughter or grandchild) living in the home and being verbally abusive, not contributing financially or refusing to move out when requested.
- Misuse of a power of attorney.
- Denial of an older person’s right to make their own decisions and control their finances.
- Isolating the older person from other loved ones.
- Older people being forced to sign legal documents.
One significant issue is the misuse of enduring powers of attorney.
An Enduring Power of Attorney (“EPA”) is an important tool that allows older people to choose the person (or persons) who will make decisions on their behalf if they lose decision-making ability in the future. They may also protect an older person with impaired decision-making ability from being exploited and abused by others. However, EPAs are capable of being misused, often with devastating consequences for the elderly person.
Often the abused elderly person is embarrassed, and unwilling to complain. Elder abuse can be subtle and difficult to pick up. Abusers often rationalise themselves into thinking that they are simply getting their inheritance or other entitlements early, sometimes referred to as “inheritance impatience.”
People who are appointed by an EPA must know that they have an absolute and unconditional duty to act in the best interests of the person who appointed them. If an appointed person acts improperly, he or she can be held personally and criminally liable.
When making an EPA, t is prudent to take precautions to reduce the possibility of such abuse. This may include considering the following options:
- Appointing two people and requiring that they act jointly, instead of relying on just one person.
- Carefully choosing the person/s who will act as your attorney/s. They must be someone you trust to act in your interests.
- Making it a condition of your EPA that someone else (e.g. another family member or friend) receives copies of bank and other financial statements and regular reports from your attorney.
- Making other people you know aware of who you have appointed so they know what is happening.
- Requiring that a doctor must certify any incapacity before the EPA comes into force.
- Possibly requiring that your affairs are independently audited each year. (Obviously there would be costs for this).
- Limiting the attorney’s power to deal with major assets, such as by selling or mortgaging your home. (This can make arranging future accommodation difficult, though).
If you are concerned that an EPA is being misused by an attorney for an elderly person who is incapable of doing anything about the situation, you may need to take action to assist them.
When elder abuse is suspected, there are arrangements (both legal and practical) that can be put in place to protect the elder from further exploitation and to provide them with the safety and security to which they are entitled.
If the reason that the older person cannot do anything about the situation is because they suffer from impaired cognitive capacity (for example, because of dementia), then you could consider making a complaint to the Office of the Public Guardian.
The Office of the Public Guardian of Queensland is responsible for investigating and taking action where an adult with impaired capacity is being exploited, neglected or abused.
The Office of the Public Guardian also has the power to require documents and records to be produced by an attorney and to look at bank records and other documents as part of its investigations.
Sometimes an application to the Queensland Civil Administrative Tribunal (“QCAT”) is necessary.
QCAT has the power to appoint an administrator or guardian for a person with impaired capacity. Before QCAT can appoint an administrator or guardian there must be sufficient evidence that:
- The adult has impaired decision-making capacity.
- There is a need for a decision; and
- A decision-maker is needed to ensure that the adult’s needs are met and that their interests are protected.
QCAT also has the power to remove attorneys who are not carrying out their duties, and to appoint other people or entities, such as the Public Trustee of Queensland, to make decisions for the person with impaired capacity.
In Queensland, on 1 May 2019, parliament passed an Act amending the Criminal Code of Queensland in relation to crimes against elders and children. These important changes include:
- s 302 – The definition of murder is now defined to include “if death is caused by an act done, or omission made, with reckless indifference to human life”; and
- s 324 – The offence of “failure to supply the necessaries of life” will now be treated as a crime, rather than a misdemeanour, with a maximum penalty of up to 7 years imprisonment.
While much of the commentary on those changes focussed on child abuse, the amendments are equally applicable to elder abuse where someone has failed to adequately care for an older person.
We are available to meet with you at any of our local offices (Brisbane, Gold Coast, Beenleigh, Cleveland and Jimboomba) or by telephone or video-conference.
This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.