Monro, Rosslyn --- "Elder Abuse and Legal Remedies: Practical Realities?" [2002] ALRCRefJl 22; (2002) 81 Australian Law Reform Commission Reform Journal 42

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Reform Issue 81 Spring 2002

This article appeared on pages 42 – 46 of the original journal.

Elder abuse and legal remedies: practical realities?

By Rosslyn Monro*

Olive is 84 years old. Five years ago she made an enduring power of attorney appointing her adult daughter, Desley, as an attorney for financial matters that was effective immediately. Olive lived independently in her own home and didn’t require any home-based care. Two years ago, Olive experienced a stroke and was hospitalised for several weeks. Upon discharge from hospital Olive learnt that her daughter Desley had signed a contract for the sale of Olive’s home. Desley’s reason for the sale of the house was that she thought Olive could no longer manage alone in the house. Olive also learnt that the purchaser of her home paid up to $70,000 less than the market value of the house.

Desley invited Olive to live in her home with her husband Harry and their 15 year old son Simon. Olive felt she had few choices, due to her change in health, and agreed to live with Desley and her family. In order to accommodate Olive, Desley modified her home by enclosing the ground floor of the house to create a granny flat. As Desley did not have any funds of her own to pay for the renovations, Olive used the proceeds of the sale of her home to pay for them. Olive was not noted on the title of the property as having a legal interest.

Olive was not particularly happy with the physical arrangement of the flat as it was not self-contained, and Desley and her family could access the flat through an internal staircase. Desley refused to let Olive’s other daughter, Joanne, into the house to visit Olive as Desley does not get along with Joanne. Desley also required Olive to pay rent for the flat.

Simon made a habit of entering the flat at all hours. He usually asked Olive for money. If Olive refused, Simon would threaten her with physical violence. Simon would also harass Olive by turning off the electricity to the flat. Olive suspected that Simon stole money from her when she was out.

Olive is extremely unhappy with the arrangement. She does not want to live in a nursing home and all her money is invested in the property in Desley’s name. Her health is deteriorating due to the stress created by her daughter and grandson’s behaviour. Despite all of the difficulties, Olive still feels the need to protect her grandson as he is going through a bad patch because he broke up with his girlfriend.

Elder abuse is the term used in the Australian context for raising the awareness of the general public, rather than a term which identifies a specific set of legal remedies available to an older person who has a complaint of abuse. Australian lawyers advising an older person are required to use existing statute and common law remedies in response to individual instances of elder abuse. In Olive’s situation, there are a number of possible legal remedies which may address her circumstances which are a combination of statutory and common law processes. Despite the availability of some legal remedies relevant to an older person like Olive, the practical realities of family dynamics and the absence of resources to support older people through the legal process reduce an older person’s access to a legal remedy. It is also arguable that many of the legal remedies inappropriately address the issues of elder abuse.

Many of the observations in this article are based on the experiences of the Brisbane based Caxton Legal Centre Inc’s specialised legal program for people over 60 years called the Legal Outreach for Older People (LOFOP).¹ The clients LOFOP have assisted are those older people who have been willing to speak about abuse to someone outside the domestic arena. As with other problems in the domestic arena, it is likely that there are high levels of older people unwilling to speak about the issue in public.

Elder abuse – the social issues

There are a number of definitions of ‘elder abuse’. One widely used definition in the Australian context is that elder abuse is an act which results in harm to an older person, which occurs within a relationship where there is an implication of trust.² This definition places these acts largely in the domestic or private arena. Elder abuse may be also catergorised into different types of abuse such as financial abuse, psychological abuse, physical abuse, sexual abuse, social abuse and neglect.

It has been estimated that 4.6 per cent of older people are victims of physical, sexual or financial abuse. In most of these cases the perpetrators of the abuse were family members or someone who was in a duty of care relationship with the older person, such as a carer.³ The common identification of family members as perpetrators is consistent with the experiences of the LOFOP program. Some families have had a history of domestic violence, and the ageing of a relative shifts the power balance between past victims and perpetrators. Other perpetrators may have problems such as drug abuse, alcoholism, gambling, or the accumulation of large amounts of debt which can lead to the abuse of an older relative. The South Australian Aged Rights Advocacy Service has identified a number of risk factors which singly, or in combination, can increase an older person’s risk of elder abuse.⁴ These risk factors include a history of ongoing conflict within the family, the level of reciprocal dependency between the older person and the abuser, and the influence of alcohol or substance abuse.

The victims of elder abuse are not readily identifiable as a distinct category of older people. Drawing from the LOFOP clients’ experience, there is no socio-economic bar; nor can it be assumed that the older person remains in an abusive relationship as a result of a lack of decision-making capacity. The research in Australia and internationally indicates that women are more likely to be victims, that the victim is more likely to live with the abuser, and that people 75 years or older are more susceptible to abuse.⁵ Older people experiencing abuse often need to overcome their sense of shame, the fear of retaliation, loss of family relationship or a radical change in their care and accommodation arrangements to make their concerns visible in the public arena.

Elder abuse – the legal remedies

As elder abuse can cover a multitude of factual scenarios, a number of legal remedies may be appropriate. In the United Kingdom legal context, Brammar⁶ has identified three levels of legal intervention to analyse the legal response to elder abuse. The three levels are preventive measures, private law, and state intervention. Each successive level provides increasingly more outside intervention into the abusive situation. This analysis is a useful construct within which to examine the Australian legal perspective on elder abuse.

The first level of legal intervention involves preventive measures. Preventive measures include legislation which regulates the provision of services to older people. A significant example of this type of legislation is the Aged Care Act 1997 (Cth). The primary purpose of this Act is to regulate the use of Commonwealth funds in the provision of aged care services, which includes nursing home care, hostel care, and community aged care packages provided in the older person’s own home. Amongst other things, the objects of the Act require recipients of Commonwealth funding to provide a “high quality of care..... [and] protect the health and well being of recipients of aged care services”.⁷ The Act also establishes a Complaints Resolution Scheme for consumer complaints. A Charter of Rights and Responsibilities (Schedule 1 to the User Rights Principles 1997) includes a right ‘to be treated with dignity, respect, and to live without exploitation, abuse and neglect’. The prevention of elder abuse is not one of the Act’s primary purposes or outcomes despite its consumer rhetoric. One of the ways in which the Act falls short as a mechanism for preventing elder abuse is its inability to regulate service providers that do not receive government funds. Even government-subsidised residents still require a great deal of support to use the complaints mechanism when they experience mistreatment due to their fear of retribution for making a complaint. Nursing home abuse stories still provide regular fodder for the media, notwithstanding the presence of regulation.

The second level of legal intervention is via private legal remedies. Private legal remedies include common law remedies and quasi-criminal legislation which impacts upon family violence. Older people experiencing financial abuse may have remedies in contract law such as actions for undue influence or actions in unconscionable conduct, which allow a party to seek an equitable remedy such as a constructive trust. Tort law provides a number of potential remedies for elder abuse cases, such as actions in negligence, assault or liability for nervous shock. The inherent difficulty with common law and equitable remedies is that they require the older person to have a sufficient level of funds available to them in order to seek legal assistance. If the older person has lost their only asset in the process of being abused, the risk of unsuccessful legal action is often too great to enter into.

Statutory remedies under specialist legislation which specifically address non-spousal family violence may be financially more accessible to older people, but may not provide extensive coverage to the many factual scenarios covered by the term ‘elder abuse’. For example, in Queensland amendments to the Domestic Violence (Family Protection) Act 1989, which are likely to be proclaimed early in 2003, will provide an older person with the ability to apply for a protection order where they experience actual or threatened physical violence within a spousal, intimate, family or informal caring relationship. Whilst specific legislation may assist an older person where physical violence is involved, many of the other types of abuse, such as financial abuse or neglect, only have their remedy in the criminal statutes or in common law remedies.

The third level of legal intervention is state intervention. State intervention includes public law matters such as mandatory reporting, adult protection legislation and criminal law. The various pieces of state-based legislation in relation to crime may provide a remedy for certain complaints of elder abuse. There is no specific offence for elder abuse. However, offences such as fraud, assault, indecent behaviour, stealing and stalking may be relevant. Making a complaint to the police and pressing charges is a highly confrontational strategy for an older person and, in the program’s experience, one that few older people will elect to pursue, particularly against a family member and particularly with a limited range of care and support options available to the older person.

There is a perspective in the elder abuse debate that the abuse of older people is analogous to child abuse, and that a child protection model of mandatory reporting is a relevant strategy to prevent elder abuse. There is significant resistance to the idea of adopting a mandatory reporting model in Australia. A policy of mandatory reporting perpetuates the ageist assumption that an older person remains in an abusive situation due to their inability to make a decision freely and voluntarily. In other words, the older person who experiences elder abuse is by definition lacking in legal capacity. Those who oppose mandatory reporting argue that older people have the right both to make bad decisions and to have that decision respected by others. Elder abuse situations are more analogous to issues of spousal domestic violence, where the legal capacity of the victim is not questioned and the complex dynamics of the abusive relationship are better understood.

In Queensland, the only legal scope for the investigation of abuse or removal of an adult from an abusive situation is through the exercise of the powers of the Adult Guardian.⁸ The Adult Guardian has a policing function for the proper use of enduring powers of attorney, and the office’s protective powers extend to suspending an attorney’s power, starting legal proceedings to claim or recover property and obtaining a warrant to enter and remove a person from a dangerous situation. However, the Adult Guardian’s jurisdiction is only activated at the time the adult has lost legal capacity. This type of legislation does not address elder abuse where the older person has capacity but is highly vulnerable in the abusive relationship. It also requires the abuse to be identified, usually by a third party, who is willing to bring the matter to the attention of the authorities.

Theoretically, Olive has a number of possible legal remedies. Simon’s harassment may be curbed by a protection order under family violence legislation, if Simon’s status as a minor does not exclude him as a respondent, as is the case in the proposed Queensland family violence law. A legal remedy relevant to the informal financial arrangement between Desley and Olive is for Olive to make an application to the court on the grounds of unconscionable conduct. A court’s finding of a constructive trust would amend the title of Desley’s home in order to reflect Olive’s financial contribution. Desley’s sale of Olive’s home at less than market value may involve an act of fraud by Desley, which lies in the criminal jurisdiction, or it may be the basis of an action for breach of fiduciary duty as an attorney. If Olive did not have legal capacity at the time Desley entered the contract on Olive’s behalf, Olive may be able to use guardianship legislation to initiate an investigation of the transaction. On paper Olive seems to have a number of options, but the experiences of the LOFOP program indicate that Olive will probably not pursue any of them. For many older people it is not a question of whether there is legal remedy but whether the legal remedy can be pursued as a practical reality.

Legal remedies – practical realities?

Despite the availability of legal remedies, older people are less likely to pursue legal avenues in the face of an abusive situation for a number of socio-cultural reasons. The power dynamics of a relationship in which abuse of an older person is occurring shares some similarities with other family violence situations. An older person is likely to be dependent upon the abuser for regular care and assistance. Despite the abusive quality of the relationship, an older person may see greater value in preserving the relationship in which abuse is occurring rather than facing the possibility of no longer living in their own home or receiving care from a family member. The preservation of the abusive relationship must be considered in the context of an environment where housing and care options are limited, particularly for those on low incomes.

Many of the non-statutory remedies are expensive to pursue through the civil courts. Financial resources may not be available to pay for legal assistance and to pursue litigation, despite the fact that home ownership rates amongst the over 60 years’ population is high.⁹ An abusive situation is also likely to deteriorate an older person’s health and well being. Legal action that may take years to resolve is a risk that many older people are not willing to take for health reasons alone. The break down of family relationship is also a source of shame for older people who may hold the belief that families should be able to resolve conflict without outside intervention or where an older person holds a belief that their own parenting skill must be at fault.

An older person’s individual perspective of an abusive situation is also reinforced by an underlying social acceptance of violence and abuse in families and a culture that does not value the experiences or contributions of the older population. The social acceptance of family violence is evident in the aged sector’s care model approach to abuse, rather than a criminal model.¹⁰ The care model uses social mechanisms to remove the older person from the abusive behaviour, such as placing the older person in alternative care arrangements, rather than making the perpetrator accountable for their behaviour. Aged Care facilities (nursing homes) are viewed as the crisis-housing alternative for older people who have been removed from an abusive situation. This approach is flawed as there are many older people who do not need the level of care offered by those facilities, placements are not readily available, and institutionalised care is unlikely to be the preference of the older person. An older person may have agreed to enter a less than ideal residential arrangement in the first instance to avoid institutionalised forms of care.

There is also a lack of affordable and accessible legal advisors who have expertise in working with older people generally, but particularly working with older people in abusive situations. In the experience of the LOFOP program, the older population is less mobile, so legal service providers must be willing to assist clients in their communities and their homes. Many older people are also unable to access free community legal services which largely operate evening services or rely heavily on technology for their service delivery. The combination of both social and physical barriers prevents older people from pursuing legal assistance and legal remedies as a practical reality.

Conclusion

Ultimately, someone in Olive’s position will base her decision about whether or not to pursue legal remedies on what is likely to be achieved. Olive is likely to decide that legal intervention will cause more problems in her life rather than provide solutions. Pursuing a legal remedy may result in social isolation and inappropriate care arrangements. If Australian communities are committed to addressing elder abuse in other than a tokenistic way, several issues need to be addressed. Appropriate legal remedies need to be developed specifically for older people, not added to other legislation which addresses similar but not the same problems. Older people also require appropriate assistance to access legal remedies that are developed upon an understanding of the socio-legal issues. Substantial funding must also be applied to providing appropriate crisis support and increasing accommodation options.

* Rosslyn Monro is a lawyer with the Caxton Legal Centre Inc in Brisbane.

Endnotes

1. At the time of writing LOFOP is faced with a funding crisis, which is likely to end the program in December 2002.

2. This is the working definition used by the members of the Australian Network for the Prevention of Elder Abuse.

3. A Graycar and M James, ‘Crime and Older Australians: Understanding and Responding to Crime and Older People’ (2000) Paper presented at the 7th Australian Institute of Family Studies Conference, 5.

4. South Australian Aged Rights Advocacy Service, Preventing Abuse of Older People by Family and Friends, www.sa.agedrights.asn.au/prevent/risk.html

5. A Graycar and M James, ‘Crime and Older Australians: Understanding and Responding to Crime and Older People’ (2000), Paper presented at the 7th Australian Institute of Family Studies Conference, 6.

6. A Brammer ‘Elder Abuse in the UK: A New Jurisdiction’ (1996) 8(2) Journal of Elder Abuse and Neglect 33-48.

7. Aged Care Act 1997 (Cth), s 2-1(1).

8. The appointment and the powers of the Adult Guardian are pursuant to the Guardianship and Administration Act 2000 (Qld).

9. 90% of older couple (over 65 years) households and 75% of older lone person (over 65 years) households were owners without a mortgage: Australian Bureau of Statistics, Australian Housing Survey: Housing Characteristics, Costs and Conditions (1999) (4182.0).

10. P Kinnear and A Graycar, Abuse of Older People: Crime or Family Dynamics? (1999) Australian Institute of Criminology Trends and Issues in Crime and Criminal Justice, Canberra, 4.