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ANNE P F WAND*, CARMELLE PEISAH**, BRIAN DRAPER*** AND HENRY BRODATY****
The term elder abuse encompasses a wide range of acts or lack of action (neglect) which cause harm or distress to an older person and occur within trusted relationships. Harm may occur when older people are unduly influenced to make decisions, including to end their lives. With the legalisation of assisted dying in Victoria, there is an urgent need to consider the relevant aspects of decision-making in this setting. Assessment of the social and relational context of older individuals is essential in evaluating whether decisions for assisted dying are autonomous or potentially an extreme form of elder abuse, or anywhere in between.
With the introduction of the Voluntary Assisted Dying Act 2017 (Vic)[1] (‘the Act’) in Victoria, and active bills and parliamentary inquiries into assisted dying in New Zealand, New South Wales, the Australian Capital Territory and Western Australia, there is an urgent need to discuss the potential implications of such legislation for elder abuse. Notably, s 5(1)(i) of that Act specifically acknowledges ‘there is a need to protect individuals who may be subject to abuse’.[2] Implicit to such ‘protection’, and arguably the safe and effective functioning of any assisted dying legislation, is the recognition and mitigation of risks of such abuse.
Older people, the age group with the highest rate of suicide internationally,[3] may be particularly vulnerable to abuse under this legislation[4] given their interpersonal contexts, especially the frequently dependent nature of their relationships and comparatively greater health burden, combined with other psychosocial factors such as perceived burdensomeness influencing decision making.
According to the World Health Organisation, elder abuse can be defined as
a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.[5]
Elder abuse can take various forms such as physical, psychological or emotional, sexual and financial abuse.[6] It can also be the result of intentional or unintentional neglect. This definition clearly includes harm and distress incurred within the context of a relationship where there is exploitation of trust and vulnerability, a key factor distinguishing abuse of older adults and that of younger adults.[7] One means of incurring harm is to adversely influence decision making, otherwise conceptualised as undue influence,[8] a prominent target of Articles 12 and 16 of the Convention on the Rights of Persons with Disability.[9] Hitherto used in the context of will-making and the execution of contractual documents,[10] but also in reference to treatment consent (see Re T),[11] undue influence has relevance to both suicide and assisted dying.
Decisions to suicide or to request assisted dying are never undertaken in a vacuum. Relational autonomy[12] suggests that autonomy emerges within and because of relationships,[13] and the corollary of this is that decision-making occurs within and because of relationships. There is evidence of the impact of relationships on the decision to die by suicide,[14] but little attention has been given to the impact of relationships on requests for assisted dying. Clarification of these issues is of upmost importance with the passage of the Voluntary Assisted Dying Act 2017 (Vic).[15]
The aim of this paper is to explore the ways in which relationships can cause harm mediated by suicide or requests for assisted dying, which by definition constitute elder abuse. We firstly discuss how interpersonal (relationship) factors relate to abuse and suicide. Secondly we explore concepts of undue influence and relational autonomy in the context of suicide and assisted dying in older people; and thirdly, criminal prosecutions. Finally, the implications for policy and guidelines in regards to requests for assisted dying are discussed.
People rarely exist in isolation, but function within various interacting social and family systems, which are inextricably linked with mental health. Most older adults with functional and/or cognitive impairment are in dependent relationships with family members and carers, rendering them vulnerable to abuse. Carers may feel stressed and burdened by their caregiving role and the shift in family roles,[16] with anger and conflict culminating in abuse[17] of a myriad of psychological, physical, neglect and financial varieties.[18]
In a more indirect way, family relationships have an impact on suicide in older people. The interpersonal theory of suicide[19] recognises the role of relationships in the decisions to end one’s life. According to this theory, three factors of thwarted belongingness, perceived burdensomeness and capability for suicide must be present for the decision to suicide. There is empirical evidence to support this hypothesis in older people. Van Orden and colleagues found that greater perceived burdensomeness and painful and provocative experiences were associated with suicide case status.[20] The sense of being a burden to loved ones and/or society has also been identified in quantitative studies of risk factors for suicide,[21] as well as in qualitative work on why older people have self-harmed.[22] This includes our own empirical work that demonstrated the combined effects of feeling like a burden to others, and often compounded by the very helplessness of family and professional caregivers alike.[23] As such, carer stress may amplify the older person’s internalised perceptions of burdensomeness.[24] When a carer’s burden culminates in an older person’s suicide in order to relieve the carer of that distress, it clearly does not constitute abuse. However, it shows the relational pathways of decision making in suicide, which at their extreme can constitute abuse, as will be discussed.
In depressed older adults, the psychiatric and physical health of their carers, and reported difficulties caring, increase the risk of suicidal behaviours in older adults.[25] How this is mediated is unclear, although it has been postulated that the older person may become demoralised by viewing their own depression as burdensome to the family carer and their relationship with them.[26] This demoralisation may lead them to conclude that their family member would be better off without them. On the other hand, it may be that when the family caregiver is not coping they are unable to provide social support to their depressed older relative, increasing the risk of a suicide attempt.[27] It is likely that both possibilities contribute to suicide risk, but passively so. In our own qualitative work on late-life self-harm we have empirically confirmed that the relational context is important, with perceptions of family and caregiver rejection acting as both a trigger for, and consequence of, self-harm.[28] The older person’s self-harm may reflect a defensive response of projective identification (when a person projects, onto another, unacceptable feelings or impulses that the recipient adopts as their own), whereby the older person acts out their burdened caregiver’s unexpressed wish for their death.[29]
Another mechanism for family relationships culminating in suicide or influencing the decision of an older person to end their life is the untenable situation. In some cases, older people are ‘bullied’ into suicide. Family conflict, elder abuse, and complex interpersonal dynamics may lead to untenable situations, whereby suicide is perceived by the older person to be their only option. The following situation illustrates this outcome.
Mrs B was an 86 year old widow with dementia who had recently moved to a nursing home after a prolonged medical admission following a fall. She was referred to an aged care psychiatry service for assessment due to continued refusal to eat and take medications. She was largely mute upon review, but her daughter, a geriatrician and nursing home staff provided a history of massive weight loss (20kg in four months), low mood, reduced talkativeness, and poor engagement with staff. Her daughter had been her primary co-resident carer for the preceding two years. Mrs B’s son had learned his sister, and not he, was appointed their mother’s representative under Power of Attorney (POA). This was perceived as an unforgivable slight against his expected role as the male of the family in their cultural context. He was also angry his mother had chosen to live with his sister and not move to a nursing home, concerned this would diminish his inheritance. He became increasingly hostile, accusatory and abusive towards his mother for choosing his sister for the POA role. This involved him shouting at her, abruptly stopping and starting the car when driving with her, throwing her rosary beads, accusing his sister of taking advantage of her, and verbally threatening his mother. Her daughter explained: ‘Sometimes she’d rush at me [after outings with her son] and just sob and I was powerless to do anything.’ The abusive behaviours occurred when Mrs B was alone with her son on weekly scheduled outings. Mrs B’s daughter offered her mother an excuse of being ‘unwell’ to protect against having to experience the weekly visits, but she declined saying ‘he’s my son and I love him’.
When Mrs B was admitted to hospital after a fall she developed a delirium (an acute confusional state) during which time she voiced paranoid ideas about her son electrocuting her and coming to ‘throw me in the Nile’. She was increasingly withdrawn and started to refuse food, most fluids and medication. Her son’s abusive behaviours continued in hospital and escalated to the point where he had to be escorted from the building by security staff. Mrs B refused to look at or speak to her son. Subsequently, he was allowed to visit his mother for short periods, and was reportedly quiet and non-confrontational towards her, with no further accusations made about her finances. Mrs B’s delirium resolved, but her cognitive and functional impairment had progressed to the point where she needed nursing home care. Upon discharge to a nursing home her oral intake improved, but it was noted she would not eat after her son visited.
Mrs B’s indirect self-harm (refusal to eat and take medications) emerged in the context of an untenable situation – elder abuse from her son whom she simultaneously loved and feared. Although she would withdraw during his visits and was visibly distressed afterwards, she was unable to voice this and would not agree to suggested measures to stop him visiting. This response derived from her role as a mother, and also culturally, as he was the eldest child and a man, and as such his position was the head of the family. The indirect self-harm inadvertently served to solve this problem as her son’s accusations and overt hostility stopped when she stopped speaking, eating, and taking medications. Mrs B’s daughter and others were aware of the abuse, but felt unable to protect her, understanding the complexity of the interpersonal dynamics of the situation for Mrs B. As her daughter summarised, ‘She would put up with anything and just wanted to see him because she loves him. He’s her son.’ Her daughter, the nursing home staff, geriatrician and GP all felt torn between respecting Mrs B’s apparent wish to maintain contact with her son and wanting to protect her from her son’s abuse. Notably there was no requirement for the abuse to be reported or clear guidelines for how they should respond. Moreover, the reluctance of the older person to cease contact with or prosecute the perpetrator is a common phenomenon for several reasons.[30]
Other situations perceived as untenable which have been implicated in the suicide deaths of older adults analysed by psychological autopsy include loss of self-esteem following migration to a different culture, guilt, shame, rejection by spouse, financial disaster and inability to stop drinking alcohol.[31]
The legal construct of undue influence is usually applied to testamentary undue influence,[32] but it has much broader application. O’Neill and Peisah argue that the concept should be extended to consideration of how relationships may influence decision making, particularly in people with cognitive impairment, who may be influenced by others to make a range of legal decisions in the other person’s favour. [33] Undue influence is also relevant to discussions about euthanasia and suicide, particularly when the decision making of individuals is recognised as bound to their relationship context. Peisah and colleagues described several risk factors or ‘red flags’ for undue influence in will-making, which remain relevant to other areas of decision making.[34] The red flags relate to the social environment, the social circumstances, and vulnerability of the person (testator):[35]
(i) The social environment includes consideration of the relationship with the ‘influencer’, such as a relationship between an older cognitively impaired person and a family member, helpful neighbour or friend, carer, distant relative, a ‘suitor’/de facto partner or spouse (often younger and not cognitively impaired), and professionals (doctors, lawyers, clergy etc).
(ii) The social circumstances that may indicate risk include the presence of family conflict, loss of favour of previously trusted relatives or friends, psychological and/or physical dependency on a carer, and isolation and sequestration.
(iii) The personal factors that render a person vulnerable to undue influence include: physical illness, disability and/or sensory impairment; substance misuse; mental illness (eg depression, schizophrenia, paranoid ideas) and cognitive disorders (delirium, dementia, intellectual disability); psychological factors including mourning and grief, personality disorders; and impaired neuropsychological functions required for decision making capacity (eg problems with judgement and reasoning, apathy/passivity).
Many older people are burdened by these risk factors outlined in the previous section. An understanding of how these factors affect decision-making can be drawn from the concept of relational autonomy, which proposes that the autonomy of individuals is founded upon their social connections and context.[36] Our identity is shaped by social environments and our interactions with other people. Nedelsky suggested that autonomy emerges within and because of relationships.[37] According to this concept, self-identity and decision making capacity are dynamic and change with the individual’s network of relationships, and their cultural and social context.[38] For example, in Maori people (and some other indigenous peoples), decisions about an individual may be made as part of a family group in a cultural context: taha whanau (family health).[39] In relation to decision making specifically, a relational autonomy approach promotes understanding and incorporating a person’s interpersonal context when assisting them to make choices in line with their sense of self and values.[40]
A related concept in evaluating whether a decision is made autonomously is authenticity. Conditions for authenticity stipulate that the persons’ decisions, beliefs, values and commitments are identified as their own, coherent with their sense of self and identity.[41] Thus, even though most tests of decision making capacity focus upon procedural aspects (ie understanding, retaining and weighing up relevant information and then communicating a decision) and emphasise capacity being decision-specific, the context of the person should also be considered to ensure the decision is autonomous.[42] This context includes authenticity, consistency and social dimensions – that decisions are made in line with the persons’ values, commitments and beliefs and in continuing interactions with others.[43] As we are social beings, we are accountable for these decisions and must be able to explain the reasons for making decisions and take responsibility for them and their consequences. Understanding undue influence and relational autonomy may be the key to understanding why some older people decide (or not) to attempt suicide or, in the future, request assisted dying.
Long term abuse and family violence also affect autonomy and decision-making through the insidious undermining of self-esteem and identity. When a person has a mental disability, including vulnerability in terms of sense of self and identity, more time must be spent understanding their values and decisions and exploring aspects of authenticity, accountability and social context necessary for autonomy.[44] One example is the following case of Mrs H, as discussed by Mackenzie:
Mrs H is a woman with an aggressive bone cancer who has had a leg amputation as part of treatment. Her husband has just left her due to her disability, disfigurement and the anticipated burden she would pose on him. She is a woman who has a poor sense of self, with a practical identity determined by norms of traditional femininity, such that her husband’s leaving her results in her feeling worthless and with no reason to live. [45]
This self-concept informs her decision to decline further treatment and to tell the treating team that she wants to die.[46] It is not difficult to see how her position could extend to a request for assisted dying. The difficulty in assessing the autonomy of decision making here is that her sense of self or identity and the values she endorses seem to stem from an oppressive social relationship.[47] Mackenzie suggests that Mrs H’s autonomy in the decision to stop treatment, and potentially to go on to request assisted dying, is therefore compromised. This is because her capacity to reflect has been impacted by distorting influences, and the appropriate response for the medical team would be to try and shift Mrs H’s perception of her situation, for example, by helping her explore whether she could see her life as having value within a broader social network (other than just her husband) and identifying sources of self-esteem around which she could reconstruct her identity.[48] Thus patient autonomy can be supported by attention to the relational context.[49]
The issue of autonomy and requests for assisted dying are complex. On the one hand, if ever there was a decision that had to be autonomous it should be the request to end one’s life. On the other hand, we have previously encouraged discussion and family consultation about such decisions.[50] In reaching an informed decision to end one’s life, we have suggested that the person requesting assisted dying should demonstrate that they have considered the potential adverse impact of their death on their loved ones.[51] Distorted perceptions of relationships and how their death might affect family and friends are relevant here. Discussion with family also allows an opportunity to explore these perceptions, and potentially resolve issues underlying the decision to request assisted dying. Rabins has also pointed out that whether there is a ‘good reason’ to die by suicide, family and friends are often permanently and seriously damaged by such a death of their loved one.[52] Whether this is also the case in assisted dying remains to be seen, although some families have reported feeling pressured to accept a relative’s wish for assisted dying when repeatedly threatened with the alternative prospect of their suicide.[53]
The reality is that notwithstanding burdened carers and a failing sense of self, a decision for assisted dying is never made in a vacuum, nor should it be. Principles of relational autonomy may be used to protect older people from this most serious potential form of abuse. Constraints on the competence condition for autonomy may come from influences which distort capacity for reflection and self-awareness. Cognitive impairment in older people is an obvious cause of such. Traditionally, this has been interpreted narrowly, in terms of impairments in the practical operation of capacity, through compromised functions such as understanding and appreciating information, weighing up the pros and cons of various options and applying these to one’s situation and values, and then arriving at a decision.[54] However, cognitive impairment may also impede accurate appraisals of relationships and consequently guide decisions through mechanisms such as changes in personality or family alliances, persecutory ideas, and apathy/passivity.[55] Christman gives other examples of distorting influences such as overpowering emotions, depression or other mental illness, being subject to physical, emotional or verbal abuse, being under the influence of substances which distort perception, or being deprived of educational and social opportunities to develop skills in reasoning, criticism and reflection.[56] Lack of self-esteem or self-confidence, often the end result of longstanding abuse, impair one’s capacity to understand his or herself and to respond in a flexible way to life changes. Autonomy is compromised by lack of self-esteem because it is hard to make a decision if one does not think his or her life and activities are worthwhile.[57] Given the array of potential factors described by Christman which may distort self-awareness in younger adults, the additional challenges faced by older adults are particularly sobering. These challenges include impaired cognition causing passivity, impaired reasoning and reflection, and the disintegration of a sense of self, which is conferred not only by impaired cognition but also by disintegration of the body.
These concepts of undue influence and relational autonomy are highly pertinent to elder abuse in general, as well as to decisions for assisted dying and suicide in older people. Firstly, we deal with elder abuse. Older age often comes with more ill health, which impacts on a person’s view of themselves, their needs within relationships, and how they respond to maltreatment in these relationships.[58] Dementia, for example, is more prevalent with increasing age and has been associated with greater risk of elder abuse compared to people without dementia. The risk of elder abuse increases incrementally with the degree of cognitive impairment.[59] Several reasons have been proposed for this increased risk of elder abuse in dementia, including greater ill health, frailty and dependency on family/carers for support, and less ability to defend oneself from physical and verbal abuse.[60] Neglect may occur due to the dependency upon others for activities of daily living and personal self-care (eg continence management). People from culturally and linguistically diverse communities may be at heightened risk of abuse due to language difficulties if their primary language is not English due to dependency on family members for support with instrumental activities of daily living (eg paying bills, seeking health care) and social contact, and potential conflict from different expectations of care between generations.[61]
Abuse in older people may also be long standing, such as ‘domestic violence grown old’.[62] For some families and couples, conflict and abuse may be well entrenched patterns of relating which simply persist into old age (thus called domestic violence grown old), rather than arising for the first time in late life. Cognitive or functional changes and ill health in older age may shift the balance of needs in a relationship, for example, with a long-term victim of abuse struggling to provide care for the perpetrator.[63] Additionally, perpetrators of domestic violence may not make good carers, as a poor premorbid relationship may lead to elder abuse.[64] Furthermore, long-term domestic violence is associated with depression and anxiety and the undermining of confidence and self-esteem, capability for independence, opportunities for success and personal development and resilience. Additionally, it may promote isolation.[65] Many of these consequences are also risk factors for undue influence. As discussed above, individuals make decisions in the context of their social environment, personal factors (physical, psychological and cognitive) and significant relationships. Decisions are also guided by how people conceptualise themselves, which may be distorted by abusive interpersonal relationships and social structures, thus impairing autonomy.[66] Therefore, as in the circumstance of making wills, these factors may interact to render an older person vulnerable to undue influence and abuse within their significant relationships.
Assisted dying is potentially a fertile ground for undue influence, and this has been recognised in the recent Victorian legislation.[67] Eligibility for assisted dying under the Voluntary Assisted Dying Act 2017 (Vic) requires a person: to have lived in Victoria for a minimum of one year; to be over the age of 18; to have decision making capacity in relation to voluntary assisted dying; to have a condition which is incurable, advanced, progressive and will cause death; to have six months to live (or 12 months if suffering from particular neurodegenerative conditions such as motor neurone disease which they are expected to die from with 12 months); and experience suffering which cannot be relieved in a manner perceived as tolerable to the individual.[68] Apart from the formal three-step request process, which mandates two independent medical assessments and a written declaration from the person requesting assisted dying, the legislation includes safeguards to protect vulnerable people from coercion and abuse. Requests will be subject to review by a dedicated board.[69] Notably, the Act also requires that the two doctors involved in assessing the person are satisfied that they are ‘acting voluntarily and without coercion’.[70] It is also clearly stipulated that a person whose primary reason for requesting assisted dying is a mental illness (as defined under the Mental Health Act 2014 (Vic)) or a disability (as defined by the Disability Act 2006 (Vic)) alone is ineligible.[71]
Thus, in addition to assessing decision making capacity in relation to assisted dying, clinicians must assess or screen for undue influence. In a proposed legal test for competence to request assisted suicide, we previously emphasised both components of the assessment task. Specifically in relation to undue influence, we suggested that the decision must be made by the person him or herself and not one he/she feels compelled to make, or coerced by others involved in their care into making, in order to relieve them of burden.[72] The possibility of making a voluntary and informed decision despite the likely presence of dependent relationships with carers was noted.[73] The person’s strength of will and the degree of pressure upon them to request assisted suicide should also be considered when assessing for undue influence. The same assessment could be usefully applied to the determination of their capacity to request assisted dying.
Terminal illness is of itself a risk factor for undue influence, and it is conceivable that people suffering from the associated physical and psychological symptoms would be more vulnerable to pressure, whether express or implied, from significant others. The definition of a terminal illness is in itself complex. There is a clear difference, for example, between someone with a condition that confers a very short life expectancy and someone with a diagnosis of early Alzheimer’s dementia. Whilst a person with early dementia has a statistically shorter life expectancy than someone without dementia of the same age, there is uncertainty about when or how they will die many years before their death. Knowledge of having, or even fear of developing, dementia may confer anxiety about the imagined experience of functional and cognitive decline, which is not often realised.[74] Notably, the Voluntary Assisted Dying Act specifies that, for a person to be eligible for access to voluntary assisted dying, they must have a disease that is expected to cause death within weeks or months, not exceeding six months,[75] which is perhaps a protective measure for those contemplating assisted dying in early dementia.
Depression is not uncommonly comorbid with terminal illness and may influence decision making capacity. It may compound perceptions of hopelessness, isolation and burdensomeness,[76] especially when accompanied by a poor prognosis. For example, depression in patients with cancer with a poor prognosis of less than three months life expectancy was found to be associated with requests for euthanasia.[77] Further, the wish for euthanasia may be state-dependent, as preferences for euthanasia in depressed older people mostly resolved upon treatment for depression.[78] Depression can be screened for in the terminally ill, and there is evidence that treatment is effective and can improve quality of life.[79] It is worth noting, however, that the presence of depression does not automatically preclude decision making capacity, a point which has been raised elsewhere.[80]
Older people, especially those reliant on carers, may feel obliged to end their lives by suicide to reduce care giver burden, for similar reasons to those proposed to potentially underlie euthanasia requests. We have previously described two cases of older people who requested euthanasia, but as it was not legal in their jurisdiction, they attempted suicide instead. In one case, an 88-year-old woman who was the primary carer for her frail older husband took an overdose with suicidal intent in the context of acute chronic pain. She had previously expressed a wish to die by euthanasia should she ever lose her independence. The acute pain was a trigger to her suicide attempt as she could no longer perform her caregiving role for her husband and feared both placement in residential aged care facility and becoming a burden on her family. In the other case an 89-year-old man with cognitive impairment and alcohol misuse who lived alone made multiple attempts to end his life. He stated he would have opted for euthanasia were it legal, and concluded that the only solution was to take matters into his own hands. With some awareness of his declining cognition, death for him meant avoiding becoming a burden on his family, nursing home placement and dependency. Avoiding placement also meant that his children would receive the full amount of his estate.[81]
In both of these cases, although there was no apparent external undue influence, it was the interpersonal or relational factors that underpinned their requests for euthanasia and ultimately, as it was unavailable, their decisions to attempt suicide.
Manslaughter and homicide are extreme manifestations of elder abuse. However, the line between assisting a person to die if they ask for help to end their life and abuse or criminal behaviour is not always clear. According to Australian law,[82] aiding and abetting a suicide is a crime. We have previously discussed R v Justins,[83] an Australian case of involuntary euthanasia due to incapacity.[84] Two women, Justins and Jennings, were found guilty of the manslaughter of Graeme Wylie, a man with severe dementia and depression who had requested euthanasia but lacked capacity to suicide. Justins was Wylie’s long term de facto partner and Jennings was a friend of the couple and a member of the voluntary euthanasia organisation Exit International. Wylie had made suicide attempts and expressed to friends and family a wish to end his life rather than succumb to the inevitable stages of decline in dementia.[85] He did not prepare an advance directive outlining his wishes at the end of life in the event that he had lost capacity or give any indication as to who should make health care decisions for him. An application to visit the Dignitas clinic[86] for euthanasia was written by Jennings on behalf of Wylie in 2005. Dignitas rejected his application due to concerns about his capacity to consent to assisted suicide. Following this rejection, Wylie unsuccessfully attempted suicide again, whilst Justins – who was aware of the attempt – was out of the house at his request. Jennings then visited Mexico in order to procure Nembutal (pentobarbitone), after reading about the effectiveness of the drug for euthanasia, and gave it to Justins upon her return. In the same month Justins took Wylie to his solicitor to change his will which substantially increased her proportion of his estate. The couple had a medical certificate stating Wylie was competent to make his own decisions. Justins testified that she left the open bottle of Nembutal on the table in front of Wylie, which he then poured into a glass. She left the house. Wylie then drank from the glass. Justins returned and found him deceased. An autopsy revealed the Nembutal in his system and confirmed the presence of Alzheimer’s disease. The prosecution rejected the women’s offer to plead guilty to assisting suicide and a jury subsequently found both women guilty of manslaughter. Jennings killed herself before sentencing and Justins was sentenced to periodic detention. The verdict rested on two key issues: Wylie’s capacity to decide to end his life by taking the Nembutal, and whether a reasonable person in Justins’ position would have known he had the capacity or explored whether he had the capacity to end his life.[87]
Justins subsequently successfully appealed her conviction in 2010 in the Court of Criminal Appeal (CCA),[88] with a key element in the determination being that a decision to commit suicide need not necessarily be informed in order to be competent.[89] Specifically, Johnson J (with Simpson J agreeing) held that:
[4] The concept of ‘an informed decision’ is not apt to an assessment of the capacity of a person to decide to commit suicide. Nor is it useful to speak of a rational decision for which a good reason may be ascribed or identified.
[5] A person possessing capacity may decide to commit suicide on a basis that is ill-informed or not supported by reason, but it may be the reasoned choice of the person, which the law accepts will render the act of suicide the act of the person and not another person who provides the means of death.[90]
It is important to note that the CCA found that, in suggesting a sequential set of capabilities the deceased must have in order to have capacity, the trial judge fell into error because these transformed factual propositions into legal requirements.[91] Notwithstanding these findings, which disconnected clinical criteria for capacity from the determination of whether the act of suicide was the act of the person or the other providing the means of death, the case highlighted the relational context of assisted suicide, notably the question of aiding and abetting a suicide or manslaughter,[92] an important distinction in the discourse about assisted dying.[93]
It is unclear what constitutes aiding and abetting in suicide in Australia as there have been no tested cases and, unlike the UK,[94] there are no guidelines for prosecution. The six public interest factors against prosecution that comprise the Policy for Prosecutors in Respect of Cases Encouraging or Assisting Suicide (‘the Policy’) for prosecuting assisted suicide cases in England emphasise the following: the importance of the victim reaching a determined, voluntary, settled and clear informed decision to end their life; the accused being motivated by compassion; the accused trying to dissuade the victim from ending their life; the minor and reluctant encouragement or assistance to the victim; and the reporting of the suicide to police and assisting in the investigation of the circumstances of the suicide.[95] The emphasis is on the motivation of the accused who assisted the suicide, not the victim. The Policy also suggests that it is not in the public interest to prosecute someone who has reluctantly and compassionately assisted in the suicide of a competent and determined adult.[96]
Assisting suicide will include conduct where the defendant supplies an instrument or drug that a person then uses to kill herself or himself. It can also consist of advice on methods which help the suicidal person in his or her task. If the assistant takes a more active role and actually kills the person (for example, by injecting the patient with drugs), the charge of murder or attempted murder may apply. This was the question in Kate Gilderdale’s case.[97] Gilderdale’s daughter Lynn had myalgic encephalomyelitis that resulted in a form of chronic fatigue syndrome. She had consistently asked for help to end her life, had attempted suicide and made an advance directive indicating she refused life-sustaining treatment. After Lynn tried and failed to end her life by morphine overdose, Gilderdale administered morphine and injected air into her daughter’s veins. She pleaded guilty to assisting a suicide but was found not guilty of attempted murder. The jury expressed much sympathy for Gilderdale’s case, deeming her role in the suicide to be compassionate. She was sentenced to 12 months’ conditional discharge.[98]
The motivation of the person assisting the suicide is an important determinant for prosecution. In contrast to the Gilderdale case, that in the case of McShane is a clear case of (elder) abuse.[99] Mrs McShane was in serious financial difficulty and was convicted under the Suicide Act 1961 for trying to persuade her mother to kill herself.[100] McShane was video recorded instructing her mother to take an overdose and cautioning her mother, before she took the overdose, not to tell anyone of her (McShane’s) role in assisting the suicide in case she would lose her inheritance claim. Her mother did not want to end her life and did not make an attempt. McShane illustrates malevolent motivation leading to coercion and pressure on a potential victim, in direct contrast to someone who makes an informed and voluntary decision to end their life,[101] having asked for the assistance of another.
We have previously recommended an approach to assessing mental capacity to request assisted suicide.[102] The proposed criteria for assessment include evaluating the following: the person’s understanding of their conditions and prognosis; their perceptions of quality of life; their ability to give informed consent (including comprehending and retaining relevant information on the potential risks and likely result of taking a drug for assisted suicide, and feasible alternatives); their reasons for requesting physician assisted suicide; and their process of reasoning (weighing up the information and arriving at a decision).[103] Consistency in decision-making should be present over time and in line with past expressed wishes and the person must be able to communicate their wish. Focus was also given to the patient’s mental status, mood (and possible mood disorders), general and interpersonal functioning, the presence of internal or external coercion; and
[t]he decision must be free from undue influence. While patients will still be able to make competent decisions when they are highly dependent on others for care, their decisions must truly be ones that they have made, rather than decisions which they have been forced to make or feel they should make to relieve others of burden. Undue influence must be assessed by having regard to both the patient’s strength of will and level of pressure being placed on the patient by others to commit suicide.[104]
In addition, we have highlighted how concepts of relational autonomy are relevant to the assessment of requests for assisted dying. Whilst such a decision must be autonomous, the person must be considered in the context of their relationships, with the accompanying complexity. Where possible, people requesting assisted dying should be encouraged to discuss this decision with their friends and family, not only for support or to ensure they understand the broader effects of this decision on others, but to safeguard against abuse.
Noting the reference in the Act to the need to protect individuals who may be subject to abuse,[105] we propose that a robust set of guidelines be developed to support this and indeed all of the other principles of capacity assessment for the purposes of that Act. Such guidelines need to be promulgated amongst all health practitioners involved in assessments for the purposes of the legislation in line with the principles of training embodied within it.[106] It is the responsibility of all health practitioners involved in assessments for the purposes of the Act to understand the importance of determining capacity and undue influence and the potential for abuse in this context. It is important for the implementation of this legislation that health practitioners understand the legislation and their responsibilities under the legislation. Active policy regarding such specific education is essential given what is already known about the gaps amongst medical practitioners in understanding capacity in general[107] and other key provisions pertaining to end of life, such as withholding and withdrawing life-sustaining medical treatment.[108]
The Royal Australian and New Zealand College of Psychiatrists (RANZCP) published a Position Statement on Physician Assisted Suicide.[109] It was recognised that the practice was illegal at the time of publication and the emphasis was on the ethical issues inherent in physician-assisted suicide, particularly in relation to psychiatrists. Several key points were raised: the rights of people with mental illness and that psychiatric illness should never be the justification for physician-assisted suicide; the rights of older people, especially those with dementia; misconceptions about older people and factors underpinning high suicide rates in older people; and the right of doctors to determine whether or not they will be involved in physician-assisted suicide.[110] The RANZCP concluded that the main role of doctors in end of life care is to promote good quality, comprehensive, accessible patient-centric care; that psychiatric assessment and treatment should be provided for people requesting physician-assisted suicide; and that psychiatrists should add their expertise to the debate. Noting the reference to psychiatric expertise in the Victorian legislation,[111] we would add the requirement that psychiatrists be trained in capacity and undue influence assessment.
With assisted dying now legal in one state of Australia, there is an urgent need to consider how capacity to request assisted dying should be assessed, including the potential for undue influence and abuse. We are social beings and, as such, decision-making capacity, including for assisted dying, must be considered within a relational autonomy framework. Older people are at particular risk of undue influence in decision-making, and we know that relational factors drive decisions to self-harm and suicide in older people. Relationships would therefore be expected to influence requests for assisted dying.
***
JOHN BOERSIG* AND DOMINIC ILLIDGE**
The report of the Australian Law Reform Commission (ALRC) into elder abuse highlighted the urgent need to formulate an appropriate legal response to the complex nature of elder abuse. Legal aid commissions across Australia will ultimately play a large role in this response, in no small part due to the extensive assistance already provided to vulnerable members of the community. This paper will explore how legal aid services in Australia can respond to the recommendations of the ALRC. This will be done with particular reference to some measures already taken by Legal Aid ACT to address elder abuse in the Australian Capital Territory (ACT). This includes examining the need for a socio-legal model of service delivery which is reflective of a rights-based dialogue that accounts for the views of an elderly person about their legal problem. Ensuring that an effective legal service model is established, particularly one which recognises elder abuse as a violation of an elderly person’s rights, is imperative if elder abuse is to be appropriately addressed.
Elder abuse, because it can be physical, financial, emotional or psychological, is a highly complex social and inter-personal issue. These factors can also combine to isolate an elderly person suffering abuse, making it difficult for them to seek legal advice. In consequence, formulating an appropriate legal response to elder abuse will require careful consideration of the impact that multiple issues – including familial relationships, disabilities or cultural backgrounds – may have on an elderly person’s risk of abuse. The Australian Law Reform Commission’s report Elder Abuse—A National Legal Response (‘ALRC Report’) has highlighted the urgent need for legal assistance.[1] The ALRC Report exposed the wide variety of areas posing legal issues in relation to elder abuse, such as wills, enduring powers of attorney and guardianship and the problems posed by the ‘hidden’ nature of elder abuse in the community.
Legal aid commissions throughout Australia already provide extensive advice and representation to vulnerable people, and this places them in a prime position to extend legal assistance to victims of elder abuse. This paper will explore the contribution that can be made through legal aid services to addressing elder abuse in the context of the ALRC Report and illustrate some innovative legal assistance strategies that can be implemented. The paper will utilise the experience of elder abuse in the ACT and the recent approaches taken by Legal Aid ACT to improve legal services for victims of elder abuse. In this context the paper will argue that we need to move towards a more rights-based dialogue, taking into account the views expressed by an elderly person, when examining how the risk factors of elder abuse must be woven into an appropriate legal assistance strategy.
It is useful to set out the current situation regarding elder abuse in the ACT to understand the difficulties that may be present in responding to elder abuse. As of the 2016 Census, there were 49,969 people over the age of 65 living in the ACT,[113] with 6,158 of these being persons over the age of 85.[114] The ACT, like the rest of the country, is an ageing jurisdiction, with the percentage of elderly people in the territory having increased from 8.6% in 2001 to 12.6% in 2016, the second largest increase in the nation behind Tasmania over that time.[115]
Despite the rapidly ageing population in the ACT, little is known about the incidence of elder abuse in the jurisdiction. A 2015 Council of the Ageing ACT report noted the true incidence of elder abuse in the Territory was ‘unknown’, primarily due to the difficulty collecting information and the vulnerability of victims of elder abuse.[116] However, one ‘concrete’ figure has been recorded by the Australian National University (ANU) in 2011. While conducting a survey in relation to the status of Canberra as an ‘age-friendly city’, the ANU found 6.1% of elderly people in the ACT had experienced a form of elder abuse, whether financial, psychological, physical or otherwise.[117] This figure is in line with the 2015 estimate by the World Health Organisation (WHO) noting 2.2% to 14% of elderly people in middle to high income nations have experienced some form of elder abuse.[118] Still, these figures are likely a conservative estimate given the difficulty in collecting information regarding elder abuse. The difficulty has often been attributed to the fact an elderly person may not recognise certain behaviour as abuse, or they may be reluctant to report a close friend or family member for fear of reprisal, destroying the relationship or losing the care they require, thereby deflating the numbers reported.[119]
As more people are required to access healthcare services or rely on their children or family members for everyday care, they are also placed at a greater risk of suffering from elder abuse. This is not to say that every arrangement made, whether it is to place an elderly person into an aged care facility or to execute an ‘assets for care’ agreement,[120] will result in elder abuse. However, such arrangements increase the dependence of the elderly person on their caregiver, elevating the risk of abuse.[121] Arguably elder abuse will become more prevalent in the ACT, and indeed the country in general, as the population ages and more people become dependent on others for financial or health care.
Canberra, as an ‘age-friendly city’,[122] should be at the forefront of putting in place mechanisms to ensure elder abuse is appropriately managed. However, while there have certainly been positive responses such as the ACT Elder Abuse Prevention Program Policy,[123] services remain disjointed and in need of greater exposure to the wider public. For instance, the Older Persons’ Abuse Prevention Referral and Information Line which was initially established in 2004, received only 125 calls in 2016-17 from people seeking information or advice about elder abuse.[124] At Legal Aid ACT there are proxy indicators for identifying elder abuse matters, such as statistics indicating the age of clients assisted and the presence of family violence. In 2016, 17,560 services to clients over the age of 65 were provided.[125]
These numbers, assuming the estimates of abuse in the ACT are correct, indicate that there is a much larger and hidden unmet need in the ACT for senior legal services addressing elder abuse. Additionally, Legal Aid ACT along with the other community legal services in the ACT are only able to provide preliminary advice on complex matters (such as wills or contractual arrangements involving equitable interests). This is problematic, as misfeasance in these areas of law can sometimes be an indication of elder abuse, particularly financial abuse, further illustrating the difficulty of meeting the legal needs of an ageing ACT population.[126]
These statistics are further compounded by the fact that social isolation may be a predictor of abuse.[127] This must be a primary consideration in recalibrating service delivery, particularly in a jurisdiction such as the ACT where a high average income coupled with policies that have spread public housing across the Territory, known as a ‘salt and pepper’ approach,[128] have had the effect of making those who are disadvantaged even more difficult to see within the community, as there are few obviously ‘poor’ suburbs or areas in the Territory.[129] The hidden nature of abuse informs the need for the consideration of a rights-based solution to elder abuse.
The statistics outlined above do not tell the full story of elder abuse in the ACT, or indeed the pervasiveness of elder abuse within the wider community, meaning a better evidence base must be developed. The starting point must be doing away with the assumption that one is at risk of elder abuse simply by virtue of being over 65 and no longer working. It is suggested here that these assumptions are wrongly made because people over 65 are a statistical ‘benchmark’ recorded by the Australian Bureau of Statistics.[130] As submitted by Legal Aid ACT to the ALRC Report, assessing an elderly person’s capacity independently of their age may be a far more effective metric by which to measure the of risk elder abuse than simply age itself.[131] Making the assumption a person over 65 is unable to enter an arrangement without it being tainted by abuse is highly paternalistic. This does nothing more than foster the very same assumptions that allow elder abuse to occur – namely, an assumption that an elderly person is incapable of managing their own affairs.[132] It ultimately represents a simplistic notion of vulnerability that assumes because a person possesses a particular characteristic, in this case age, they are therefore at risk of abuse or neglect.[133]
By the same token, it cannot be assumed that a person under 65 has the capacity to enter into agreements without an appropriate assessment ensuring that they understand the effect of those agreements.[134] Taking a more nuanced approach than simply checking a person’s age to how we assess whether a person is at risk of abuse is ultimately necessary to ensure legal services are appropriately targeted to address elder abuse. This necessarily requires a rights-based approach, in an endeavour to ensure an open and active dialogue with the older person to get a full understanding of the circumstances in which they find themselves. [135] This is critical whether they are a 90 year old man living with a loving and caring family or a 59 year old cognitively impaired woman living alone with limited family interaction.[136]
The difficulty in defining who may be at risk of elder abuse is made even more problematic when considered from a non-Anglo-Saxon background, particularly the Aboriginal and Torres Strait Islander community. The statistics are compelling in this regard: an Indigenous woman is likely to live 9.5 years less than a non-Indigenous woman while an Indigenous man will likely live 10.6 years less than a non-Indigenous man.[137] While this gap has slowly been closing over the years,[138] it is nonetheless substantial. Additionally, Aboriginal and Torres Strait Islander people are more likely to become grandparents at a younger age than those from a non-Indigenous background.[139] With these factors in mind, how we define an elderly person in the Indigenous community for the purpose of elder abuse cannot be undertaken in the same manner as with the wider community. In fact, even the term ‘elder’ has a special connotation in the Aboriginal and Torres Strait Islander community, being associated with authority and knowledge.[140] This also underlines why notions of elder rights, rather than simply elder abuse, provide a better paradigm for identifying need and best practice modes of service delivery.
Disabilities can also have a large impact on the risk of elder abuse for an individual. Cognitive impairment in particular has been shown to increase the risk a person faces of being subject to elder abuse.[141] Cognitive function can in fact be impacted by an older person’s environment, with those who are in a socially secure situation less likely to experience cognitive impairment.[142] Losing cognitive function can impact a person’s capacity to effectively manage their finances, opening up an elderly person to financial abuse, as an abuser will often be in a position to access and take control of that person’s assets.[143] Even more problematic, impairment of capacity can be a consequence of elder abuse,[144] with those who suffer abuse more likely to be hospitalised, even when accounting for other factors such as socioeconomic status.[145] This can have the effect of possibly aggravating any condition an elderly person may have, further increasing their risk of experiencing abuse. Abuse could also have the impact of impairing the cognitive function of someone not considered an elder, yet opening them up to further abuse commonly categorised as elder abuse, particularly asset mismanagement. This again muddies the waters surrounding who is at risk of elder abuse beyond simply looking at their age, further illustrating the need for a nuanced approach to how legal services are delivered to those at risk of elder abuse.
The limited information regarding elder abuse in the ACT is reflective of the underreporting of elder abuse that has been a constant feature of the literature in this area.[146] This, combined with socio-economic and cultural context couching who is at risk of elder abuse, is why legal services must take into account the actual circumstances of an individual. In particular, noting that a person’s cultural background, socio-economic status or cognitive ability may have a far bigger impact on their risk of elder abuse than simply age itself.
Given the hidden nature of elder abuse, and socio-economic disadvantage generally, in the ACT, it is a challenge to assess and provide an appropriately individualised legal service response to elder abuse. This issue is further compounded by the constant battles with funding the legal sector faces, limiting capacity to provide early intervention services, often an efficient and cost-effective means of legal problem solving.[147] Despite these issues, what is certain is that the need for legal services addressing elder abuse in the ACT clearly exists and is not being met.
The ALRC Report detailing a national legal response to elder abuse is a policy milestone and will form a substantial platform for the future. It is imperative that the recommendations and findings from the Report are not left as mere academic curiosities without any action taken towards their implementation. With that in mind, consideration is now given to some of the key points raised by the ALRC Report, particularly those which will impact on how both legal service delivery and law reform can complement each other to address elder abuse. Of particular significance is the recognition that the acknowledgment of elder abuse must mature into a discussion about elder rights ensuring that informed and appropriate decisions can be made, and how that may be balanced with a number of the protective recommendations made.
The headline recommendation to come out of the ALRC report was that of a National Plan to combat elder abuse.[148] The ALRC even noted that the National Plan, as the ‘capstone recommendation’, would provide an opportunity to develop any future policy planning on the back of programs and work already undertaken in multiple jurisdictions.[149] As life expectancy continues to rise and fertility rates continue to fall across the country, with those trends not confined to particular jurisdictions, there is little doubt that a coordinated and national response to elder abuse is required.[150] To be effective, such a plan would require consideration of how it operates at a national, state and territory level. Additionally, consideration would need to be given to the role that both legal aid commissions and community legal service providers would play in liaising with both government and non-legal community institutions.
Already, legal aid commissions and community legal centres operate under a National Partnership Agreement (NPA),[151] which regulates funding and performance indicators along with indicating priority clients (such as those who are over 65).[152] While not specifically related to elder abuse, the NPA places legal aid commissions and community legal centres in a position to be easily integrated into any national plan that is implemented. However, it is important the role of legal aid services is not limited only to providing legal advice and representation. Rather, legal aid services are able to play a large role in preventing elder abuse from occurring through community legal education.
Under the NPA, community legal services are tasked with providing community legal education (CLE).[153] CLE is a critical tool in intervening early before legal issues become serious, or before they even arise at all.[154] This is done through informing people about their rights and empowering them to solve legal issues as they arise.[155] Therefore, it is critical that any national plan implemented considers how CLE can play a role in addressing elder abuse, not only in educating those at risk but informing the wider community of the warning signs and potential consequences. Utilising the resources of community legal services that are already in place should certainly be a major consideration in implementing a nationwide CLE program. Involving both legal aid commissions and community legal centres would allow for consistency in the message that is produced. Furthermore, the nature of CLE as an outreach service provides a means of reaching out to the ‘hidden’ victims of elder abuse empowering them, or sympathetic friends and family, to speak up and seek legal advice or redress.
To illustrate the need for a national community education plan, there was an emphasis in the ALRC Report on education regarding wills, especially homemade, do-it yourself dispositions.[156] This is primarily due to concerns that many individuals may not have the ability to engage a lawyer to help them draft a comprehensive will. However, due to the increasing need for drafting wills, because of both an ageing population and the complexity of some testamentary wishes, many private firms are rejecting performing pro bono work on wills at an increasing rate.[157] As the population ages further, it is likely more people will be unable to afford appropriate services to help draft wills. Already, legal aid commissions provide limited advice in regards to wills, meaning it is not even the case that people fall into the ‘justice gap’. Rather, they simply will be unable to get a will drafted if they cannot afford to engage a private lawyer.[158] For these people, they may have no choice but to draft a will using a publicly available and generic kit. While drafting your own will is a reasonable choice which people should be able to make,[159] using a kit also brings with it a further risk of undue influence from a person who may have been caring for an elderly person, even if the elderly person is assessed to have testamentary capacity.[160]
Providing CLE to older people about wills is critical, especially to ensure that they understand the importance of testamentary capacity and the risks involved in drafting your own will. This education can not only involve information provided on websites, but also outreach taking place at health care facilities, retirement villages or seniors centres mitigating some of the barriers older people may experience in accessing legal services.[161] For instance, outreach services are a critical aspect of Legal Aid ACT’s operations, and play a large role in further fostering connections with the community. It is important this connection is used to inform elderly people about the complexities and issues that must be addressed when drafting a will, including the need for testamentary capacity.[162] Making sure that people are aware of the risks involved in drafting a will before it comes time to put pen to paper is critical in upholding the principle of autonomy underlying the ALRC Report, as legal education will help provide the person with the requisite knowledge to make an informed choice that reflects their wishes.
Executing an enduring power of attorney (EPOA) is a common step taken by many elderly people to ensure decisions can be made regarding their finances or medical treatment in the event that they lose decision making capacity. However, the power received by a person who is appointed by an EPOA necessarily imposes a risk that power can be abused.[163] As raised by the ALRC Report, while each jurisdiction allows a mechanism for appointing an attorney, there are differences in the obligations and reporting mechanisms across the states and territories.[164] Furthermore, many principals and attorneys enter these agreements without regard to the legal ramifications involved or the obligations imposed upon the attorney.[165] Accordingly, when the elderly person loses decision-making capacity, they will be placed in a position where they will be unable to identify any breaches of the power of attorney and lack the ability to seek help.[166]
The potential for abuse occurring under an EPOA is, for the most part, self-evident because the person for whom decisions are being made will not be in a position to challenge those decisions. As the elderly person will not have capacity whilst an EPOA is in effect, often there may not be a chance for any decisions made under an EPOA to be challenged or examined until after the elderly person dies and the effects of the decisions can be identified.[167] Furthermore, a person appointed under an EPOA may potentially also be the executor of an elderly person’s estate, making it difficult for the elderly person’s wishes to be enforced even by a third party.[168]
An EPOA is intended to provide appropriate protections for the principal, that is, the person who may be subject to the abuse. In the ACT, there is no requirement for the parties to seek legal advice nor for there to be a witness present with either legal expertise or the ability to assess capacity when the agreement is executed. Currently, a witness to the execution of an EPOA need only sign a certificate noting the principal executed the EPOA voluntarily and they appeared to understand the nature and effect of the power of attorney.[169] There would be benefits to having more restrictive processes in safeguarding the interests of older people when they execute an EPOA. However, this need not necessarily be done through demanding witnesses have an ability to assess capacity, rather the parties to an EPOA agreement (particularly the principal) should be required to seek legal advice before entering into the agreement.[170] This would allow for an assessment of a person’s decision-making capacity without the need for a specialised witness to be present when the EPOA is executed, and would help ensure a principal understands the gravity of executing an EPOA when they lose their decision-making capacity.
Currently, in the ACT, there are no restrictions on who can be appointed as an attorney. Creating restrictions was addressed in the ALRC Report through making a list of ineligible persons, including if the person:
(a) is an undischarged bankrupt;
(b) is prohibited from acting as a director under the Corporations Act 2001 (Cth);
(c) has been convicted of an offence involving fraud or dishonesty; or
(d) is, or has been, a care worker, a health provider or an accommodation provider for
the principal.[171]
Both (a) and (c) are identical to criteria found in the Guardianship and Management of Property Act 1991 (ACT) preventing a person from being appointed a guardian or manager.[172] Meanwhile, paragraph (b) reflects the fiduciary nature of the director-company relationship, with those individuals who have made dishonest or seriously reckless decisions regarding a company disqualified from being appointed as a director.[173] Considering an attorney is burdened with similar fiduciary duties to a director, due to the vulnerability of the principal,[174] this represents an appropriate safeguard. The final criterion (d) preventing care workers from being appointed with an EPOA is clearly made in response to some of the issues highlighted surrounding elder abuse in aged care facilities.[175]
These criteria represent sensible restrictions and, at least in the ACT, are consistent with criteria preventing people from being appointed guardians. As recognised by the ALRC,[176] and indeed submitted by Legal Aid ACT, an exception should exist to criteria (d) for family members who provide care for an elderly person.[177] Despite the fact that often elder abuse will be perpetrated by a close family member,[178] it is important to remember that in many cases an elderly person will want to have their affairs dealt with by a person they trust and who often will understand their wishes. Restrictions on appointments are certainly necessary but it is important they do not undermine the purpose of the appointment, ensuring the principal’s wishes, and consequently their rights, are respected.
In some cases, even if the appointed attorney is acting in good faith, their interests and the interests of an older principal may come into conflict.[179] In other cases, the attorney may attempt to make a decision against the principal’s wishes before the principal loses their capacity.[180] This risk is certainly intensified where the attorney is a family member who is controlling assets from which they may stand to benefit if the principal were no longer the owner.[181] The potential for conflicts of interest when a family member is appointed as an attorney can go unnoticed, even by a solicitor who uncritically accepts the instructions of an attorney without considering the wishes of the principal, as was shown in Reilly v Reilly.[182]
The ALRC Report indicated legislation specifically targeted at conflict transactions should be enacted to protect the assets of an elderly person who has executed an EPOA.[183] This would be in addition to the already present legislative provisions dealing with conflict transactions generally.[184] Specific legislation enacted would require legal education, and indeed legal advice, before any agreement to enter into an EPOA arrangement is made. Legal advice to both principals and attorneys, would help both parties recognise a conflict transaction when it occurs (either generally or in reference to any enacted legislation), preventing the need for an independent party to identify a conflict and authorise that particular transaction.[185] Empowering elderly people with the information required to execute an EPOA ensures that they are heavily involved in the decision, reflecting the importance of a rights-based dialogue in this area. Legal advice could also be coupled with mandatory registration of those who have been appointed with powers of attorney,[186] providing more accountability for decisions made under an EPOA and an additional safeguard for any appointment.[187] These measures, while not necessarily completely preventing situations such as those in Reilly v Reilly from occurring, would increase the scrutiny given to EPOA arrangements where a family member is appointed as an Attorney.
With financial abuse being particularly associated with elder abuse,[188] it is no surprise informal family agreements can play a large part in enabling abuse to occur. As elder abuse often is a complex interaction between social factors such as familial relationships, environmental factors such as low levels of social support and physical factors such as decreased mobility or disease and disorders, it is easy to see how informal ‘assets for care’ agreements lead to abuse as elderly people become more dependent on others for care.[189]
For the most part, an elderly person will look to a family member for support, possibly one who is currently living with them, even if that family member is not entirely capable of undertaking such a role.[190] Hoping to keep assets within the family, or because they believe payment of some kind is required, an elderly person may transfer the interest they have in their own property to the caregiver as consideration for the care they will receive moving forward.[191] This agreement does not necessarily lead to elder abuse, but certainly increases the risk of it occurring.[192]
These arrangements necessarily bring with them a heightened risk of a transaction being tainted by undue influence or unconscionability, which may then provide a legal avenue for the elderly person to challenge the transaction. However, a transaction made where property is transferred from a parent to a child is not one where the law presumes that undue influence exists, rather factors showing an antecedent relationship must be examined.[193] It is likely that in those cases where an elderly person has a cognitive impairment, unconscionability or undue influence will be a highly relevant factor.[194] In these circumstances any argument over whether such a transaction was unduly influenced will often not be put forward until after the death of the elderly person and the estate has been executed.[195]
In cases where cognitive impairment is not present, identifying undue influence or unconscionability may prove more difficult as on its face the agreement made was mutually beneficial at the time.[196] This may mean, as noted by the ALRC, proprietary or equitable estoppel provides a more appropriate remedy.[197] Nonetheless, this course of action would still require conduct on behalf of the family member that would make it unconscionable to not honour the agreement the elderly person has relied upon.[198] While this conduct can be assessed on inferences and conduct alone,[199] the absence of any formal documentation in these agreements would likely negatively impact on the evidentiary burden the elderly person would ultimately bear. For a court, examining family arrangements many years after the fact with a view to determining a legal or equitable interest is ultimately not an easy task, even when there is a level of agreement as to the wishes of the elderly person.[200]
In any event, if such an agreement is made, it is often done quite informally and without the benefit of legal advice as to how it may affect an elderly person’s rights or income support.[201] If the relationship breaks down, which will occur if elder abuse arises, the older person may be in a situation where they have no legal interest in their property and are unwilling to pursue a remedy due to the costs involved or the further damage it would do to family relationships.[202] The provision of independent legal advice is a critical factor in rebutting the presumption that a transaction was unduly influenced.[203] Clearly it is important that legal advice is given early to ensure that the consequences are appropriately understood. This could help prevent cases being brought by family members following the death of an elderly person and provide appropriate protection for elderly people making these transactions.
A further complication, as outlined in the ALRC Report, in preventing these agreements is because the arrangements may result in a ‘granny flat interest’ which is exempt from the ‘gifting rules’ affecting the older person’s asset assessment for the purposes of social welfare payments.[204] Therefore, any changes that formalise these agreements may encourage older people to undertake them. Noting the gifting exemption that currently exists, this could potentially place a larger number of people at risk of abuse. It is therefore critical that elderly people considering these arrangements are informed about the consequences and their rights, as it can be difficult to enforce a legal or equitable interest after an agreement breaks down. Financial arrangements are therefore an area where CLE can be vital, informing elderly people of the risks involved in ‘assets for care’ arrangements and perhaps even providing limited assistance.
An important procedural element in elder abuse matters is providing an appropriate forum to resolve disputes. While in some situations a crime will have been committed and it will be appropriate to involve the police, for the most part the issues that will be faced by the elderly are unlikely to attract the immediate interest of police – disputes involving wills, estates and powers of attorney, all of which have been discussed to some extent above.[205] These are areas of law in which great care needs to be taken when seeking specialist advice from solicitors. The nature of these disputes often means a matter will require a hearing in the Supreme Court,[206] depending on the monetary value disputed.[207] The cost and time that it would take for an elderly person to pursue such a matter is often more than enough to discourage them from engaging a lawyer to help them enforce their rights. Additionally, in the ACT, if any loss has been suffered due to the improper exercise of an EPOA, an application must be made to the Supreme Court to receive compensation, whether made by the elderly person or another interested party.[208] This places a near-insurmountable barrier on an elderly person who may have been left without any assets due to elder abuse.
However, this barrier could be removed, as the ALRC and multiple stakeholders suggest, through extending the jurisdiction of state and territory tribunals in relation to family agreements and EPOA disputes.[209] This would make the process much easier, since the ACT Civil and Administrative Tribunal (ACAT) already has the power to revoke or suspend an EPOA.[210] Extending the jurisdiction of ACAT and other tribunals to allow for compensation orders or determination in family agreement disputes would remove the significant cost barrier associated with taking court action along with simplifying the process, something which is key considering the vulnerability of many of those suffering from elder abuse and the complexity of the current legal framework. A simplified system of resolving these disputes would help empower elderly people to enforce their rights in cases of abuse.
This paper has argued against a reductionist approach to elder abuse and vulnerability. In that regard, it is important that special attention is given to Chapter 14 of the ALRC Report discussing at-risk adults and safeguards that could be put in place to protect them.[211] The fallacy of assuming that only those over 65 need protection, while those under 65 do not, was recognised by the ALRC, who noted a ‘functional’ approach to vulnerability was preferred.[212] How we safeguard those at risk of elder abuse is an important factor in the law’s response to the issue, particularly noting that implementing safeguarding laws without nuance or consideration of the particular individual has the potential to do more harm than good.[213] It is important that, in line with the ALRC’s focus on respecting the autonomy and agency of the elderly,[214] we ensure that we do not take away the ability of elderly people to make informed decisions about their treatment and care.[215]
Ensuring a person consents to any safeguard measure is critical if the guiding principle of respecting the autonomy of older people is to be upheld.[216] After all, the common law makes the presumption a person has the capacity to consent, with the burden of proof being placed on the party seeking to show incapacity.[217] This principle must be kept in mind when adult safeguarding legislation is drafted. However, with that being said, the ALRC Report notes the problem of respecting a person’s autonomy to the point of not acting within their best interests.[218] It is important that whatever policy change is put in place, it strikes a balance between respecting autonomy and removing an at-risk elderly person from a situation where they are experiencing elder abuse. Importantly it must be recognised, as submissions to the ALRC noted, that abuse can have an impact on a person’s autonomy, meaning even if they may objectively be assessed as having decision-making capacity in regards to refusing a safeguard measure, they may not be expressing their actual wishes.[219]
Hence, if on the one hand there is a principle espousing autonomy and on the other hand protection, how do we respond to the ALRC’s proposed principles relating to adult safeguarding legislation in cases where an older person’s decision-making capacity is compromised? [220] After all, any assessment of capacity is already a protectionist measure where an external party makes a decision as to whether someone has the autonomy to make decisions for themselves.[221] As noted by the ALRC, a balance between protection and respect for an older person’s rights is required.[222] Additionally, the Report goes on to note an older person’s ‘will, preferences and rights’ must be respected and that they have the ‘right to refuse support’, further highlighting the importance of autonomy.[223] Furthermore, there is a risk that in instituting adult protection legislation, the principles guiding child protection legislation are used to inform the drafting of legislation directed at protecting older people. While these principles, in the ACT, do account for the wishes of a child in determining their best interests, their wishes are but one factor of 12 to be considered.[224] This approach could potentially clash with a number of human rights as found in the Human Rights Act 2004 (ACT), most notably the right to equal recognition before the law.[225] As noted in a report by the Secretary-General of the United Nations to the General Assembly, the analogue to s 12(3) of the ACT Human Rights Act (being Article 26 of the International Covenant on Civil and Political Rights) extends to discrimination in any field regulated by public authorities.[226] Conceivably, this could include protection agencies established for elderly people. In this regard, formulating adult protection legislation without appropriate consideration of the autonomy of the older person would potentially be a discriminatory action impacting upon an elderly person’s recognition before the law.
Consequently, the best approach must be to balance the potential risks associated with an over-paternalistic approach, and using a person’s decision to not receive protection as a means to pursue the principle of autonomy at the expense of their wellbeing.[227] As with assessments of decision making capacity under the Mental Health Act 2015 (ACT), the starting point must be that an older person understands the decision that they are making, meaning that decision must be respected.[228] There is room in a rights-based approach to undertake some protectionist measures, especially in regards to cognitively impaired older people, but those measures should not be considered without accounting for the views of the older person.
The ALRC report made a number of recommendations about increased coordination and cooperation between health, medical and legal services, seeking consent from the at-risk adult before commencing action or investigation, and instituting statutory protections from civil liability for those who may report suspected abuse to the authorities.[229] Having a coordinated response is critical, as the current safeguard system is quite disjointed with multiple services and agencies involved in protecting the elderly.[230] A potential factor is the discombobulated responsibilities regarding elder abuse, with the Commonwealth having appropriated power over aged-care facilities, but none over adult protection legislation.[231] It is deeply problematic if people are unaware of what service may be required, or may be reluctant to report abuse for fear of reprisal or straining family relationships if they report elder abuse to the police.[232] For instance, in the presentation of a vulnerable older client a lawyer should recognise if there are capacity issues coupled with a risk of elder abuse. The lawyer may then contact the Public Trustee and Guardian along with other services such as the ACT Disability, Aged and Carer Advocacy Service or community support organisations. The obvious problem with this approach is that the pathway for assistance is ill defined and ultimately reliant on the lawyer’s personal knowledge and contacts.
Additionally, while there are multiple legislative definitions of decision-making capacity,[233] it is possible different organisations may assess a person’s capacity in different ways – whether from a legal or medical perspective.[234] Furthermore, a service provider, whether they are legal or medical in nature, may only have a short period of time in which to identify abuse and, even if that abuse is identified, often there will not be a chance for that service provider to follow up with the report.[235] Arguably, it is clearly in the best interests of victims of elder abuse for there to be a reporting agency or process that can streamline and coordinate an investigation into an older person’s capacity or well-being. This also points towards establishing publicly available and inexpensive legal aid services.
The Age Discrimination Commissioner, Dr Kay Patterson, has recently commented that we should all have an aversion to reports, inquiries or plans that never get implemented.[236] Given the vulnerability of elderly people subject to abuse, the ARLC Report rightly points out that it is the duty of all governments, community organisations and those with the power to reform the law to ensure these findings are properly considered and implemented. What has been outlined above represents a broad view of how these findings may be received and implemented. It also suggests that the debate needs to take more cognisance of how the rights of elderly people are impacted by abuse, and that we need to shift the discussion toward a rights-based dialogue. In short, the response to the ALRC Report must re-envisage legal services around notions of the civil rights of the older person. Practice must also be informed by the recognition that elder abuse is an infringement of a person’s rights and affects them in a variety of ways.
Currently, our mode of legal service delivery could be improved to better meet the legal needs and wishes of the elderly, particularly those who are most at risk of suffering elder abuse. This was illustrated by the 2012 Legal Australia-Wide Survey, which indicated those over 65 were less likely to seek help for their legal problems and less likely to receive a favourable resolution than other cohorts in the population.[237] Many elderly people may not understand their rights or are not aware of the availability of legal services to address their problems.[238] Additionally, elderly people from a culturally or linguistically diverse (CALD) background are even less likely than the general elderly population to seek out advice to redress legal issues.[239] This is not unsurprising as cultural attitudes regarding the elderly (or indeed reporting abuse inflicted by family members) can differ wildly between cultures.[240] Furthermore, using the internet or phone services can be a difficult task that prevents those elderly people with a cognitive impairment from seeking advice.[241]
The interwoven and complex nature of all social factors and the legal problems arising from elder abuse necessitates a holistic approach that would take into account the various barriers preventing elderly people from achieving just outcomes. A holistic approach in this area can best be delivered though a socio-legal method of service delivery. This is a method of delivery requiring cooperation across multiple disciplines including legal, law enforcement, health and social organisations and the client themselves.[242] The coordination between a team made up of professionals from a wide variety of disciplines has proven to be an effective means of addressing elder abuse.[243] While this represents a ‘gold standard’ approach, with a fully coordinated team working to address the issues of one elderly client, it often will not be feasible in practice.[244] Often a member of one profession, whether a lawyer, doctor or social worker, will take on a form of ‘accidental case management’, using their own connections with other organisations and agencies to respond to the issues raised by an elderly client.[245] Even with this ad-hoc approach, referrals to different agencies are critical in addressing the complex environmental and social factors associated with elder abuse.[246] In other words, a legal service cannot simply focus on the legal problem at hand in relation to a matter raising the possibility of elder abuse.
It is worth noting from a legal services perspective, if an elderly client presents with a legal issue, it is quite likely abuse has already occurred, or indeed is continuing to occur.[247] This often means that prevention will not often be the primary goal of a legal services provider.[248] In other words, our job in the legal services industry is often to focus on harm-reduction, looking to mitigate the harm a client has already suffered and the risk of further harm in the future.[249] This is obviously further complicated by the ‘hidden’ nature of elder abuse, with there being a large risk that an elderly client may not present at all, especially when coupled with the hidden nature of disadvantage in the ACT. However, this can be mitigated through the provision of outreach services.
It is critical for a socio-legal model of service delivery that outreach services are provided at locations where vulnerable elderly people are likely to be found. This not only has the effect of informing the elderly about the services available, but also helps to break down some of the barriers the elderly may face in accessing services, notably inabilities to go out to legal services.[250] This also helps to establish relationships with community organisations, further expanding the ability of a legal service to make referrals, enhancing their ability to deliver services consistent with a socio-legal model.[251] Not only can education be provided through outreach, but a lawyer can also be present to provide limited legal advice or to facilitate a further session if needed.[252]
Once a client does engage a legal service provider, it is important that services are in place or easily accessible, so as to address the social and environmental problems accompanying the legal issue at hand. One way of doing this is through embedding a social worker in the legal service, helping the client to understand the advice given and placing the lawyer in a better position to understand the multitude of issues that have led the client to seek legal advice.[253] This is not a unique concept, or indeed a modern one, with research going back over 35 years indicating the benefits of having social workers and lawyers operate in tandem.[254] A vulnerable older person may have experienced forms of social exclusion or marginalisation in the past, making them reluctant to access a legal service.[255] A social worker can help bridge this gap, connecting the client with the lawyer and ensuring the client’s problems are understood. The social worker would also be able to follow-up with the client, ensuring that they understood any advice given and to make sure that they are ‘doing okay’.
The ultimate goal of a socio-legal model of service delivery is to break down the barriers faced by older people in accessing justice. Once those barriers have been broken down, it then becomes possible to provide them with a service that addresses more than just the legal problem at hand. Outreach and education are vital factors in achieving the first goal while a multi-disciplinary approach that coordinates legal, health and social services is critical to achieving the second. Use of this approach has evolved out of discussion of elder abuse in relation to human rights, a recognition of elder abuse as a violation of many of the rights an elderly person is entitled to enjoy.[256] In fact, a socio-legal approach rather neatly relates to discussion of respecting a person’s equality before the law.[257] In this sense, a socio-legal model is a critical aspect of a rights-based approach, treating the elderly person as more than simply a legal problem and involving them in the resolution of their issues.
The responses to the ALRC Report, such as those outlined above, and a socio-legal model of service delivery, detail how the ‘big picture’ response to elder abuse may take shape. Legislative reform and national coordination regarding CLE are initiatives that will take time to develop and implement, even when considering the already present infrastructure provided by legal aid commissions and community legal centres. For instance, in Victoria and Queensland, seniors’ rights services have been established with a mind to protecting and respecting the rights and dignity of older people in providing legal services.[258] These services provide a model for legal assistance that can be replicated across the country either by legal aid commissions or independent providers, particularly with a focus on rights-based delivery. In that regard, over the last 12 months Legal Aid ACT has been investigating how best to provide services to the elderly community in the ACT ensuring their rights are acknowledged and respected.
For legal aid service providers such as Legal Aid ACT, it is critical that the particular problems surrounding service delivery to those suffering elder abuse are clearly identified. This is further highlighted by the demographics of the ACT, particularly in relation to the hidden nature of disadvantage in the ACT.[259] This ultimately places more emphasis on the outreach and social service referral aspects of legal service delivery. These services not only help to ‘shine a light’ on hidden victims, but also serve to empower an elderly person to assert any rights that have been violated due to the occurrence of elder abuse.
One way in which we can reach the most vulnerable in our community is through instituting health justice partnerships. These types of partnerships were originally seen in the United States, where the aim was to provide a better means to address the social factors surrounding illness, especially in regards to vulnerable patients.[260] It is critical for these partnerships to be successful that there is input from all parties involved, including the clients themselves, with a particular focus on barriers to justice that they face.[261] These partnerships ultimately allow for a greater awareness of legal issues for health practitioners and indeed awareness of medical issues for lawyers.[262] Having lawyers present at the hospital helps to alleviate some of the issues that may prevent people from accessing a lawyer, whether it is the stress associated with seeking legal assistance or limited mobility.[263] Health justice partnerships also allow for warm referrals, as information can be taken back to a lawyer or community worker, providing them with a ‘head start’ before the client comes to see them.[264]
In the context of elder abuse,[265] health justice partnerships facilitate medical staff to take action once it is recognised that a vulnerable elderly person may be at risk of abuse while they are in the hospital. The medical staff can then refer the matter to a lawyer or representative from a legal service present at the hospital, who can then provide information back to the legal service allowing a lawyer to be briefed and get in touch with the client. This cooperation allows for early intervention by legal services, preventing issues from arising and moving the focus from harm minimisation to harm prevention. Furthermore, these are individuals who would likely be considering an assets for care arrangement, providing an opportunity to provide them with advice on the potential consequences.
Currently, for example, Legal Aid ACT runs outreach sessions at the Canberra Hospital, providing a way for patients, families or visitors to ask for legal information or limited advice, or even to be booked for a further interview at a later time. The program was initiated in August 2017, and recorded 135 client interactions as of December 2017. Of these 135 interactions, 54 were referred to make a further appointment with Legal Aid or to an external organisation. Additionally, the largest age group of individuals seen were those over 56 years of age. While this may be reflective of the higher likelihood of hospitalisation of elderly people, especially those with chronic diseases,[266] it also illustrates why hospitals and other health care facilities in the ACT are appropriate places for establishing a legal presence to combat elder abuse. This partnership is in its infancy but, as time goes on, a closer relationship is being built, allowing for greater cooperation in the provision of a socio-legal service. Importantly, this partnership allows legal advice and assistance to be provided at the early stages of a matter when a client presents to a hospital rather than the legal service itself.[267] While not explicitly part of any plan to combat elder abuse, outreach at the Canberra Hospital serves to connect elderly clients with legal services at a stage when it is possible to prevent legal issues, such as those involving EPOAs, before they arise.
Additionally, Legal Aid ACT has partnered with Libraries ACT to not only place lawyers and staff at Libraries across the ACT, but also to package Legal Aid ACT information so it can be provided to clients of the Home Library Service (who have 300 house-bound people to whom they deliver library services).[268] While only a small step, those who are serviced by the Home Library Service will often be vulnerable individuals with limited mobility and often a small support network.[269] This approach can help bring ‘hidden’ victims out of the dark and connect them with Legal Aid ACT. Furthermore, noting the difficulties in simply using age as a risk factor for elder abuse, this service will help to connect Legal Aid ACT with a greater number of people who may be at risk of elder abuse rather than simply servicing those over 65.
As part of the socio-legal model of service delivery, it is optimal that a social worker is present and embedded within a legal service to provide non-legal support. Currently Legal Aid ACT provides social support workers for Aboriginal and Torres Strait Islander clients, clients from a culturally and linguistically diverse background and clients who are suffering from family violence. These liaison officers are an invaluable resource to Legal Aid ACT, helping to connect clients not only with in-house lawyers but also with other community organisations. These officers often work with some of the most vulnerable clients who come to Legal Aid ACT, and indeed clients who could be at a greater risk of elder abuse than the general population.[270] Ensuring these liaison officers are available to elderly clients is critical in providing a holistic service which is sensitive to attitudes that may cause or allow the perpetration of elder abuse. This is especially important in the context of Aboriginal and Torres Strait Islander clients, where there are unique issues regarding elder abuse, because an Indigenous liaison officer can break down some of the barriers faced by older people in the Aboriginal and Torres Strait Islander community from accessing legal services.
Early resolution of disputes through a structured mediation process is the most obvious area to next reform. Legal aid commissions have shown to address elder abuse an approach that draws from family dispute resolution (FDR) services, especially if the signs of elder abuse are picked up early, provides a non-confrontational means of resolving the dispute.[271] Legal Aid ACT, as is the case with all legal aid commissions, has a large amount of experience in running FDR conferences, and this experience can certainly be applied in the elder abuse sphere. The use of FDR-like conferencing in elder abuse matters would likely be best placed as an early intervention service.[272] This situation might arise where there is a dispute over assets or care arrangements before any tangible harm has occurred. Early intervention would also serve to remove one of the major barriers to justice faced by elderly people – the fear of breaking down family relationships.[273] The complex nature of these family relationships often requires a ‘delicate’ approach that cannot be provided in the courtroom. Moreover, mediation and dispute resolution can be tailored to meet the needs of all parties attending.[274] Arguably, it is also important that the conference is not used as a method of assessing capacity, as that could be used to unduly influence not only the mediation session but the relationship between the elderly person and the other party moving forward.[275] In this sense, FDR-like conferencing would best serve older adults who have decision-making capacity, which would fit in with its purpose as an early intervention service.[276] This would allow for an elderly person’s views to be reflected in any decision or solution reached, which is vital in ensuring their rights are appropriately protected.
Finally, it is important to acknowledge that the formal processes of obtaining legal assistance can be a specific barrier for elderly people. Older people can often be in a situation where they are asset-rich, as they may own an unencumbered property, yet income-poor, preventing them from accessing the services of a private lawyer.[277] This is problematic, as in cases of elder abuse, while the older person may own the property, they may not have control over it, thus preventing them from using that asset to fund private representation.[278] Possible options include relaxing the means tests employed by legal aid commissions, and providing more flexibility in how they are applied to older people who may own property but who are suspected of being affected by elder abuse.[279] With Legal Aid ACT approving 28 grants of 73 applications received from those over 65 in 2016-17,[280] and the majority of these applications being rejected on the means test,[281] this option should be given serious consideration, including possible amendments to legal aid commission legislation across the country.
Legal aid commissions will be at the forefront of Australia’s response to elder abuse. Vulnerable and disadvantaged people form the core clientele of legal aid. The ALRC Report shows that the justice system and its attendant institutions are not yet well designed to meet the legal needs of the elderly community, and their recommendations for a coherent national response to elder abuse is timely. The innovative work performed by legal aid commissions, as has been illustrated in this paper by the approach taken in the ACT, shows that solutions can be found to enhance the accessibility of legal assistance to victims of elder abuse. In particular, whether through outreach services or clear lines of referral from social services to legal services providers, early identification of people at risk of abuse is crucial to a successful provision of legal assistance to the elderly in our community. Legal aid services must find ways to cross the gap that can be created by age and isolation, so that the often hidden nature of elder abuse is exposed.
Clearly, legal aid commissions are well placed to develop better platforms for delivering services to victims of elder abuse. They already have extensive experience providing community legal education and specialist service to vulnerable and disadvantaged people – including Aboriginal and Torres Strait Islanders and people from culturally and linguistically diverse communities. However, the ability to improve specialised service to elderly people, or indeed to relax means tests, is related to the capacity of legal aid commissions to provide that service. This is not simply a question of redirecting resources, but is fundamentally a challenge to government to make the necessary investment in legal aid. Capacity is necessarily tied to funding, and the battles legal aid commissions and community legal centres have had with insufficient funding are well documented.[282] Additional funding would allow specialised service to better redress the disadvantaged who are faced by the often hidden nature of elder abuse. With the national spotlight on elder abuse becoming ever brighter, it is hoped Federal and State and Territory governments will quickly respond to the bourgeoning needs of the most vulnerable and disadvantaged ageing population and, most significantly, resituate strategies around a new notion of elder rights.
***
* B(Sc)Med(Hons); MBBS(Hons); FRANZCP; M(Psychiatry). Conjoint Senior Lecturer, University of New South Wales, Sydney, Australia.
** MBBS (Hons); FRANZCP; MD. Conjoint Professor, University of New South Wales, Sydney, Australia and Clinical Associate Professor, University of Sydney.
*** MBBS (Hons); MD; FRANZCP. Conjoint Professor, University of New South Wales, Sydney, Australia.
**** MBBS; MD; DSc; FRACP; FRANZCP; FAHMS. Scientia Professor, University of New South Wales, Sydney, Australia.
1 Voluntary Assisted Dying Act 2017 (Vic). Notably when using the term ‘assisted dying’ we use the definition from the Act, namely ‘the administration of a voluntary assisted dying substance and includes steps reasonably related to such administration’. Euthanasia is not a legal term and does not have a universally accepted definition, so is not otherwise used in this paper unless specifically used by the reference source.
[2] Voluntary Assisted Dying Act 2017 (Vic) Pt 1 s 5(1)(i).
[3] Ajit Shah, Ravi Bhat, Sofia Zarate-Escuredo, Diego DeLeo and Annette Erlangsen, ‘Suicide Rates in Five-Year Age-Bands after the Age of 60 Years: The International Landscape’ (2016) 20 Aging and Mental Health 131, 138.
[4] Voluntary Assisted Dying Act 2017 (Vic).
[5] World Health Organization, A Global Response to Elder Abuse and Neglect: Building Primary Health Care Capacity to Deal with the Problem Worldwide (2008), 1 <http://www.who.int/ageing/publications/ELDER_DocAugust08.pdf> .
[6] Ibid.
[7] Rae Kaspiew, Rachel Carson and Helen Rhoades, ‘Elder Abuse: Understanding Issues, Frameworks and Responses’ (Research Report No 35, Australian Institute of Family Studies, February 2016) 8.
[8] Carmelle Peisah et al, ‘The Wills of Older people: Risk Factors for Undue Influence’ (2009) 21(1) International Psychogeriatrics 7, 15.
[9] United Nations Convention on the Rights of Persons with Disabilities, opened for signature on 30 March 2007, A/RES/61/106 (entered into force on 3 May 2008).
[10] Peisah et al, above n 8, 7.
[11] Re T (An Adult): Refusal of Medical Treatment [1992] All ER 649.
[12] Carolyn Ells, Matthew R Hunt and Jane Chambers-Evans, ‘Relational Autonomy as an Essential Component of Patient-Centered Care’ (2011) 4(2) International Journal of Feminist Approaches to Bioethics 79, 101.
[13] Jennifer Nedelsky, ‘Reconceiving Autonomy: Sources, Thoughts and Possibilities’ (1989) 1(7) Yale Journal of Law and Feminism 7, 36.
[14] Gustavo Turecki and David A Brent, ‘Suicide and Suicidal Behaviour’ (2016) 387 The Lancet 1227, 1239. This review paper describes the social, including relationship factors associated with suicide, such as living alone, interpersonal stressors, loss and bereavement.
[15] Voluntary Assisted Dying Act 2017 (Vic).
[16] Carmelle Peisah, ‘Practical Application of Family and Systems Theory in Old Age Psychiatry: Three Case Reports’ (2006) 18(2) International Psychogeriatrics 345, 353.
[17] Susan Kurrle, Paul Sadler and Ian Cameron, ‘Patterns of Elder Abuse’ (1992) 157(10) Medical Journal of Australia 673, 676.
[18] Ibid. Kurrle and colleagues describe the frequency of various forms of elder abuse in a sample of community dwelling older people.
[19] Thomas E Joiner, Why People Die by Suicide (Harvard University Press, Cambridge, Massachusetts, 2005).
[20] Kim Van Orden et al, ‘A Case Controlled Examination of the Interpersonal Theory of Suicide in the Second Half of Life’ (2016) 20(3) Archives of Suicide Research 323, 335.
[21] Jerome Motto and Alan Bostrum, ‘Empirical Indicators of Near-Term Suicide Risk’ (1990) 11(1) Crisis 52, 59.
[22] Van Orden et al, above n 20, 324; Anne Wand et al, ‘Understanding Self-Harm in Older People: A Systematic Review of Qualitative Studies’ (2018) 22(3) Ageing and Mental Health 289, 298; Joiner, above n 19.
[23] Anne Wand et al, ‘Why Do the Very Old Self-Harm? A Qualitative Study’ (2018) American Journal of Geriatric Psychiatry <https://doi.org/10.1016/j.jagp.2018.03.005>.
[24] Kimberley Van Orden et al, ‘The Interpersonal Theory of Suicide’ (2010) 117(2) Psychological Review 575, 600.
[25] Gregory A Hinrichsen and Nancy A Hernandez, ‘Factors Associated with Recovery from and Relapse into Major Depressive Disorder in the Elderly’ (1993) 150(12) American Journal of Psychiatry 1820, 1825; Richard A Zweig and Gregory A Hinrichsen, ‘Factors Associated with Suicide Attempts by Depressed Older Adults: A Prospective Study’ (1993) 150(11) American Journal of Psychiatry 1687, 1692.
[26] Zweig and Hinrichsen, above n 25, 1692.
[27] Ibid.
[28] Wand et al, above n 23.
[29] Projective identification is a defence mechanism or interpersonal communication whereby subtle interpersonal pressure from the carer is placed upon another [older] person to take on the feelings/thoughts of an aspect of the carer – in this context the wish their elder relative was dead. The older person who is the target of that projection then begins to think, feel and behave in the way the carer projected, ie ‘I want to die’.
[30] Australian Law Reform Commission, Elder Abuse—A National Legal Response, Report No 131 (2017) 209.
[31] John Snowdon and Pierre Baume, ‘A Study of Suicides of Older People in Sydney’ (2002) 17(3) International Journal of Geriatric Psychiatry 261, 269.
[32] Peisah et al, above n 8, 6.
[33] Nick O’Neill and Carmelle Peisah, Capacity and the Law (Australasian Legal Information Institute (AustLII) Communities, 2nd ed, 2017).
[34] Peisah et al, above n 8, 10.
[35] Ibid.
[36] Ells, Hunt and Chambers-Evans, above n 12, 86.
[37] Nedelsky, above n 13, 36.
[38] Ells, Hunt and Chambers-Evans, above n 12, 86.
[39] Tane Ora Alliance, Taha Whanau – Family Health <https://www.maorimenshealth.co.nz/te-whare-tapa-wha-health-whare/taha-whanau-family-health/>.
[40] Ells, above n 12, 87.
[41] Catriona Mackenzie and Wendy Rogers, ‘Autonomy, Vulnerability and Capacity: A Philosophical Appraisal of the Mental Capacity Act’ (2013) 9(1) International Journal of Law in Context 37, 52.
[42] Ibid 44.
[43] Ibid 45.
[44] Ibid 50.
[45] Catriona Mackenzie, ‘Relational Autonomy, Normative Authority and Perfection’ (2008) 39(4) Journal of Social Philosophy 512, 533.
[46] Ibid 526.
[47] Ibid 518.
[48] Ibid 526.
[49] Ells, Hunt and Chambers-Evans, above n 12, 95.
[50] Cameron Stewart, Carmelle Peisah and Brian Draper, ‘A Test for Mental Capacity to Request Assisted Suicide’ (2010) 37(1) Journal of Medical Ethics 34, 39.
[51] Ibid 38.
[52] Peter V Rabins, ‘Can Suicide be a Rational and Ethical Act in Persons with Early or Pre-Dementia?’ (2007) 7 American Journal of Bioethics 47, 49.
[53] Claudia Gamondi, Murielle Pott, Sheila Payne, ‘Families’ Experiences with Patients Who Died after Assisted Suicide: A Retrospective Interview Study in Southern Switzerland’ (2013) 24(6) Annals of Oncology 1639, 1644.
[54] Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819.
[55] O’Neill and Peisah, above n 33; Carmelle Peisah et al, ’Family Conflict in Dementia: Prodigal Sons and Black Sheep’ (2006) 21(5) International Journal of Geriatric Psychiatry 485, 492.
[56] John Christman, ‘Relational Autonomy, Liberal Individualism and the Social Constitution of Selves’ (2004) 117 Philosophical Studies 143, 164.
[57] Mackenzie, above n 45, 525.
[58] Lucy Knight and Marianne Hester, ‘Domestic Violence and Mental Health in Older Adults’ (2016) 28(5) International Review of Psychiatry 464, 474.
[59] Xinqi Dong et al, ‘Decline in Cognitive Function and Elder Mistreatment: Findings from the Chicago Health and Aging Project’ (2014) 22 American Journal of Geriatric Psychiatry 598, 605.
[60] Knight and Hester, above n 58, 466.
[61] Dale Bagshaw, Sarah Wendt and Lana Zannettino, ‘Preventing the Abuse of Older People by their Family Members’ (Stakeholder Paper 7, Domestic Violence Clearing House, 2009) 16 <http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.843.2682 & rep=rep1 & type=pdf> .
[62] Chanaka Wijeratne and Sharon Reutens, ‘When an Elder is the Abuser’ (2016) 205(6) Medical Journal of Australia 246, 247.
[63] Knight and Hester, above n 58, 466.
[64] Claudia Cooper, ‘Abuse of People with Dementia by Family Carers: Representative Cross Sectional Survey’ (2009) 338 British Medical Journal, 583, 586.
[65] Knight and Hester, above n 58, 469.
[66] Mackenzie, above n 45, 526.
[67] Voluntary Assisted Dying Act 2017 (Vic).
[70] Ibid ss 20(1)(c), 29(1)(c).
[72] Stewart, Peisah and Draper, above n 50, 38.
[73] Ibid.
[74] Brian Draper et al, ‘Early Dementia Diagnosis and the Risk of Suicide and Euthanasia’ (2010) 6 Alzheimer’s and Dementia 75, 82.
[75] Voluntary Assisted Dying Act 2017 (Vic) ss 9(1)(d), (3).
[76] Van Orden et al, above n 24, 600.
[77] Marije L van der Lee et al, ‘Euthanasia and Depression: A Prospective Cohort Study among Terminally Ill Cancer Patients’ (2005) 23 Journal of Clinical Oncology 6607, 6612.
[78] Stuart Hooper et al, ‘Preferences for Voluntary Euthanasia during Major Depression and Following Improvement in an Elderly Population’ (1997) 16(1) Australasian Journal on Ageing 3, 7.
[79] Lauren Rayner et al, ‘Antidepressants for the Treatment of Depression in Palliative Care: Systematic Review and Meta-Analysis’ (2011) 25(1) Palliative Medicine 36, 51.
[80] Stewart, Peisah and Draper, above n 50, 37.
[81] Anne Wand et al, ‘Rational Suicide, Euthanasia, and the Very Old: Two Case Reports’ [2016] Case Reports in Psychiatry 1, 2-3.
[82] Crimes Act 1900 (NSW) s 31C.
[83] R v Justins [2008] NSWSC 1194 (12 December 2008).
[84] Stewart, Peisah and Draper, above n 50, 37.
[85] Thomas Faunce, ‘Medical Law Reporter: Justins v The Queen: Assisted Suicide, Juries and the Decision to Prosecute’ (2011) 18(4) Journal of Law and Medicine 706, 715.
[86] Dignitas is an association founded in Switzerland in 1988 with the objective of ensuring a life and death with dignity for its members. They offer services to people internationally, including the possibility of assisted suicide for people making a reasoned request in the context of medical proof and cases of terminal illness, pain or disability.
[87] Stewart, Peisah and Draper, above n 50, 37.
[88] Justins v R [2010] NSWCCA 242; (2010) 79 NSWLR 544.
[89] Faunce, above n 85, 706.
[90] Justins v R [2010] NSWCCA 242; (2010) 79 NSWLR 544 [4]–[5].
[91] Ibid [2].
[92] R v Justins [2008] NSWSC 1194 (12 December 2008).
[93] Faunce, above n 85, 710.
[94] Director of Public Prosecutions, Suicide: Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide (October 2014) Crown Prosecution Service <http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html> .
[95] Ibid.
[96] Alexandra Mullock, ‘Overlooking the Criminally Compassionate: What Are the Implications of Prosecutorial Policy on Encouraging or Assisting Suicide?’ (2010) 18 Medical Law Review 442, 470.
[97] ‘Mother Cleared of ME Daughter’s Attempted Murder’, BBC News (online), 25 January 2010 <http://news.bbc.co.uk/2/hi/uk_news/england/sussex/8479211.stm> .
[98] Afua Hirsch, ‘Kay Gilderdale Case: A Clear Verdict on the Law’s Confusion on Assisted Suicide’, The Guardian UK (online), 26 Jan 2010 <https://www.theguardian.com/uk/2010/jan/25/kay-gilderdale-case-expert-view>.
[99] (1977) 66 Cr App Rep 97; R Huxtable, Euthanasia, Ethics and the Law: From Conflict to Compromise (Routledge-Cavendish, 2007) 60.
[100] Suicide Act 1961 (UK).
[101] McShane (1977) 66 Cr App Rep 97 [43(3)].
[102] Stewart, Peisah and Draper, above n 50, 38.
[103] Ibid.
[104] Ibid.
[105] Voluntary Assisted Dying Act 2017 (Vic) ss 5(1)(i), 12.
[107] Greg Young, Alison Douglass and Lorraine Davison, ‘What Do Doctors Know about Assessing Decision-Making Capacity?’ (2018) 131 New Zealand Medical Journal 58, 71.
[108] Ben White et al, ‘Doctors’ Knowledge of the Law on Withholding and Withdrawing Life-Sustaining Medical Treatment’ (2014) 201(4) Medical Journal of Australia 1, 4.
[109] Royal Australian and New Zealand College of Psychiatrists, Physician Assisted Suicide, Position Statement No 67 (2016) 1, 4.
[110] Ibid 2.
[111] Voluntary Assisted Dying Act 2017 (Vic) s 18(1).
* LLB (Macq), BA (Macq), PhD (USyd). Chief Executive Officer, Legal Aid ACT; Adjunct Professor of Law, University of Canberra.
** LLB (Hons) (ANU), BSc (ANU). Research Assistant, Legal Aid ACT.
112 Australian Law Reform Commission, Elder Abuse—A National Legal Response, Report No 131 (2017).
[113] Australian Bureau of Statistics, 2016 Census Quick Stats: Australian Capital Territory (23 October 2017) <http://www.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/8?opendocument> .
[114] Ibid.
[115] Australian Bureau of Statistics, 2001 Census Quick Stats: Australian Capital Territory (9 March 2006) <http://www.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/036> Australian Bureau of Statistics, 2016 Census Quick Stats: Australian Capital Territory (23 October 2017) Australian Bureau of Statistics <http://www.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/8?opendocument> .
[116] Eva Cotterell et al, ‘Elder Abuse in the ACT: A Literature Review’ (Report, Council on the Ageing, June 2015) 7.
[117] Centre for Mental Health Research, ‘A Baseline Survey of Canberra as an Age-Friendly City’ (Report, Australian National University, 2011) 51 (‘ANU Report’).
[118] World Health Organisation, ‘World Report on Ageing and Health’ (Report, World Health Organisation, 2015) 74 <http://apps.who.int/iris/bitstream/10665/186463/1/9789240694811_eng.pdf?ua=1> .
[119] Cotterall, above n 5, 10; Suzana Leonardi, ‘Elder Abuse? What’s That When It’s at Home: Experiences of Elder Abuse in the ACT’ (Draft Report, Council of the Ageing ACT, 2015), 11 <http://www.cotaact.org.au/wp-content/2015/10/Elder-Abuse-Experiences-draft.pdf> .
[120] An assets for care arrangement generally involves an elderly person either selling their home to provide funds for a family member in exchange for care or transferring their interest in their property to a family member in exchange for care.
[121] Louise Kyle, ‘Assets for Care: A Guide for Lawyers to Assist Older Clients at Risk of Financial Abuse’ (Guide, Seniors Rights Victoria, 2012) <https://assetsforcare.seniorsrights.org.au/assetsforcare/wp-content/uploads/2014/10/Assets-for-Care.pdf>.
[122] World Health Organisation, Canberra, Age-Friendly World<https://extranet.who.int/agefriendlyworld/network/canberra/>.
[123] ACT Government, ‘ACT Elder Abuse Prevention Program Policy’ (Policy, ACT Government, June 2012) <http://www.communityservices.act.gov.au/data/assets/pdf_file/0004/317605/Elder_Abuse_Prevention_Program_Policy_2012_FINAL_2.pdf> .
[124] Community Services Directorate, ‘Community Services Directorate – Annual Report 2016-17’ (Annual Report, ACT Government, 2017) 57.
[125] Internal Legal Aid ACT figures, so far in 2017-18 (as of 10 May 2018) 282 services to clients over 65 have been provided.
[126] Ashurst Australia, ‘Older People Law Brief’ (Report, Ashurst Australia, 14 January 2016). This report was prepared by Ashurst Australia for Legal Aid ACT.
[127] Ron Acierno, ‘Prevalence and Correlates of Emotional, Physical, Sexual and Financial Abuse and Potential Neglect in the United States: The National Elder Mistreatment Study’ (2010) 100(2) American Journal of Public Health 292, 292.
[128] ACT Government, Frequently Asked Questions: Answers to Your Questions about Public Housing Renewal in the ACT (4 January 2018) Public Housing Renewal Taskforce <https://www.planning.act.gov.au/topics/public-housing-renewal/frequently-asked-questions>.
[129] Robert Tanton, Riyana Miranti and Yogi Vidyattama, ‘Hidden disadvantage in the ACT: Report for ACT Anti-Poverty Week’ (Report, National Centre for Social and Economic Modelling – University of Canberra, October 2017), 13-14 <http://www.natsem.canberra.edu.au/storage/2017-hidden-disadvantage-in-the-act-anti-poverty-week-report.pdf> Kirsten Lawson, ‘ACTCOSS calls for budget concessions to help increasing numbers of poor in Canberra’ The Canberra Times (online), 6 June 2017 <http://www.canberratimes.com.au/act-news/actcoss-calls-for-budget-concessions-to-help-increasing-numbers-of-poor-in-canberra-20170605-gwko98.html> .
[130] Australian Law Reform Commission, Elder Abuse, Discussion Paper 83 (2016), 22.
[131] Legal Aid ACT, Submission No 58 to Australian Law Reform Commission, Inquiry into Protecting the Rights of Older Australians from Abuse, August 2016, 5.
[132] Joan Harbison, ‘Understanding “Elder Abuse and Neglect”: A Critique of Assumptions Underpinning Responses to the Mistreatment and Neglect of Older People’ (2012) 24(2) Journal of Elder Abuse & Neglect 88, 95.
[133] Laura Pritchard-Jones, ‘The Good, the Bad, and the “Vulnerable Older Adult”’ (2016) 38(1) Journal of Social Welfare and Family Law 51, 56; James O’Brien and Desmond O’Neill, ‘Prevention of Elder Abuse’ (2011) 377 The Lancet 2005, 2006.
[134] Lise Barry, ‘Capacity and Vulnerability: How Lawyers Assess the Legal Capacity of Older Clients’ (2017) 25 Journal of Law and Medicine 267, 274.
[135] Australian Human Rights Commission, A Human Rights Approach for Ageing and Health - A Human Rights Approach and the Aged Care Reforms, Australian Human Rights Commission <https://www.humanrights.gov.au/human-rights-approach-ageing-and-health-human-rights-approach-and-aged-care-reforms>.
[136] Pritchard-Jones, above n 22, 56.
[137] Australian Bureau of Statistics, Life Tables for Aboriginal and Torres Strait Islander Australians 2010-2012 (Catalogue number 3302.0.55.003, 15 November 2013), 6 <http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/BD51C922BFB7C6C1CA257C230011C97F/$File/3302055003_2010-2012.pdf> .
[138] Ibid.
[139] Mick Gooda, ‘Introduction’ (Paper presented at the AAG Elder Abuse and Neglect Conference, Alice Springs, 5 September 2012).
[140] Ibid.
[141] Xinqi Dong, ‘Association of Cognitive Function and Risk for Elder Abuse in a Community-Dwelling Population’ (2011) 32(3) Dementia and Geriatric Cognitive Disorders 209, 210.
[142] Susan Charles and Laura Carstensen, ‘Social and Emotional Aging’ (2010) 61 Annual Review of Psychology 383.
[143] Rae Kaspiew, Rachel Carson and Helen Rhoades, ‘Elder Abuse: Understanding Issues, Frameworks and Responses’ (Research Report No 35, Australian Institute of Family Studies, February 2016) 12.
[144] Ibid 11–12.
[145] Xinqi Dong and Melissa Simon, ‘Elder Abuse as a Risk Factor for Hospitalization in Older Persons’ (2013) 173(10) JAMA Internal Medicine 911.
[146] Robert Kohn and Wendy Verhoek-Oftedahl, ‘Caregiving and Elder Abuse’ (2011) 94(2) Medicine and Health, Rhode Island 47; Amy Carney, ‘Indicators of Abuse in the Elderly ICU Patient’ (2015) 38(3) Critical Care Nursing Quarterly 293; Jason Burnett, W Andrew Achenbaum and Kathleen Pace Murphy, ‘Prevention and Early Identification of Elder Abuse’ (2014) 30(4) Clinics in Geriatric Medicine 743.
[147] Christine Coumarelos et al, ‘Legal Australia-Wide Survey: Legal Need in Australia’ (Report, Law and Justice Foundation of New South Wales, August 2012) 15.
[148] A draft of the National Plan is expected in late 2018: see Christian Porter, Attorney-General (Cth) ‘National Plan to Address Elder Abuse’ (Media Release, 20 February 2018) <https://www.attorneygeneral.gov.au/Media/Pages/National-Plan-to-address-elder-abuse.aspx>.
[149] ALRC Report, above n 1, 59.
[150] Australian Bureau of Statistics, Feature Article: Population by Age and Sex, Australia, States and Territories (15 December 2016), 3101.0 – Australian Demographic Statistics, Jun 2016 <http://www.abs.gov.au/AUSSTATS/abs@.nsf/Previousproducts/3101.0Feature%20Article1Jun%202016> .
[151] Council of Australian Governments, ‘National Partnership Agreement on Legal Assistance Services’ (Australian Government, 28 June 2017) <https://www.ag.gov.au/LegalSystem/Legalaidprogrammes/Documents/NationalPartnershipAgreementOnLegalServices.pdf>.
[152] Ibid 5.
[153] Ibid 6, 12.
[154] National Association of Community Legal Centres, Submission No 91 to Productivity Commission, Inquiry into Australia’s System of Civil Dispute Resolution, November 2013, 30.
[155] Ibid.
[156] ALRC Report, above n 1, 290.
[157] Productivity Commission, Access to Justice Arrangements, Report No 72 (2014), 820. Wills/probate/estates was indicated by 25% of firms as one of the top 5 areas they reject doing pro bono work. This also may be indicative of the number of request received, however is reflective of the larger number of people who will not be able to get assistance in these areas.
[158] For instance, Legal Aid ACT provides education regarding wills, however will often not provide advice and does not assist a person in drafting a will.
[159] Victorian Law Reform Commission, Succession Laws, (Report, Victorian Law Reform Commission, August 2013), 12 <http://lawreform.vic.gov.au/sites/default/files/Succession_Laws_final_report.pdf> .
[160] Ibid, 15. The common law tests for testamentary capacity are well established: see Banks v Goodfellow (1870) 5 QB 549, 565.
[161] Elizabeth Samra, Elder Abuse Report (Report, Legal Aid ACT, June 2017) 15. This report was prepared for Legal Aid ACT by Elizabeth Samra following community consultation with stakeholders in the ACT.
[162] As noted by Kunc J in Ryan v Dalton [2017] NSWSC 1007, [106] an assessment of testamentary capacity will always be a fact sensitive process, making it difficult to provide a specified procedure.
[163] Queensland Law Reform Commission, A Review of Queensland’s Guardianship Laws, Report No 67 (2010), 320.
[164] ALRC Report, above n 1, 163.
[165] Legal Aid ACT, above n 20, 58; see also Ryan v Ryan [2017] VSC 490, [130] the Attorney in this case did not appear to understand the position of trust she was placed in, despite drafting loan agreements with legal assistance and providing her principals with care. See also Downie v Langham [2017] NSWSC 113.
[166] Legal Aid ACT, above n 20, 58.
[167] See Re McFadyen [2015] ACTSC 219, involving a cognitively impaired woman who had executed a new will leaving her attorney the residue of her estate. Following her death, the trustee of the second will made an application to the ACT Supreme Court to seek a revocation of the second will as the principal did not have the testamentary capacity to make a valid will.
[168] This risk was outlined in Alcazar-Stevens v Stevens [2017] ACTCA 12, [47], and was used as an argument by the court for rejecting an interpretation of s 50 of the Powers of Attorney Act 2006 (ACT) put forward that only would have allowed the executor of an estate to make an application under that section for the principal, or the estate, to receive compensation for a loss caused by a failure of the Attorney to comply with the Act.
[169] Powers of Attorney Act 2006 (ACT) s 22.
[170] Legal Aid ACT, above n 20, 58.
[171] ALRC Report, above n 1, 174.
[172] Guardian and Management of Property Act 1991 (ACT) s 10(2).
[173] Corporations Act 2001 (Cth) s 206B.
[174] Natalia Wuth, ‘Enduring Powers of Attorney with Limited Remedies – It's Time to Face the Facts!’ (2013) 7 Elder Law Review 1, 6–7.
[175] ALRC Report, above n 1, 101; Kate Kersey et al, ‘Professional Discipline of the New Zealand Nursing Residential Care Workforce: A Mixed Methods Analysis of HPDT Decisions 2004-2014’ (2017) 24 Journal of Law and Medicine 803.
[176] ALRC Report, above n 1, 174.
[177] Legal Aid ACT, Submission No 223 to Australian Law Reform Commission, Inquiry into Protecting the Rights of Older Australians from Abuse, February 2017, 9.
[178] Sarah Ellison et al, Access to Justice and Legal Needs: The Legal Needs of Older People in NSW (Law and Justice Foundation of NSW, 2004) 269.
[179] Tsharna Stewart, ‘Enduring Powers of Attorney: An Effective Advanced Planning Tool or an Avenue for Financial Abuse’ (2012) 32 Queensland Lawyer 201, 204.
[180] Ibid.
[181] ALRC Report, above n 1, 172.
[182] [2017] NSWSC 1419, [380]–[381].
[183] Ibid.
[184] In the ACT this is found in s 42 of the Powers of Attorney Act 2006 (ACT).
[185] Legal Aid ACT, above n 66, 8.
[186] As announced by the Treasurer Scott Morrison, as part of the 2018-19 Budget the Federal Government will be working with the States and Territories to develop a national online register of Enduring Powers of Attorneys (see Commonwealth, Budget Measures 2018-19, Budget Paper No 2 (8 May 2018) 77).
[187] Stewart, above n 68, 206.
[188] World Health Organisation, ‘World Report on Ageing and Health’ (Report, World Health Organisation, 2015) 74 <http://apps.who.int/iris/bitstream/10665/186463/1/9789240694811_eng.pdf?ua=1> .
[189] Andrew Day et al, ‘An Assessment of Interventions that Target Risk Factors for Elder Abuse’ (2017) 25(5) Health and Social Care in the Community 1532, 1533.
[190] Shelly Jackson, ‘Theory-Based Models Enhancing the Understanding of Four Types of Elder Maltreatment’ (2016) 22(3) International Review of Victimology, 289, 304.
[191] Kyle, above n 10, 9.
[192] Legal Aid ACT, above n 20, 17.
[193] Christodoulou v Christodoulou [2009] VSC 583, [70].
[194] See Re Mahoney [2015] VSC 600, [186].
[195] See Hartley v Woods [2017] NSWSC 1420, Thorn v Boyd [2014] NSWSC 1159 and Re Mahoney [2015] VSC 600.
[196] ALRC Report, above n 1, 211; see also Pinter v Pinter [2016] QSC 314, [126], while this matter was brought by a son after his parents had died to protect his own interests following an assets for care type arrangement, this case reflects that the existence of undue influence will likely be examined at the time the transaction was made.
[197] ALRC Report, above n 1, 213.
[198] The principles regarding estoppel were outlined in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 428–9.
[199] Rixon v Horseshoe Pastoral Co Pty Ltd [2017] NSWSC 1293, [58].
[200] As illustrated by Hurst-Meyers v Public Trustee and Guardian (ACT) [2018] ACTSC 61, these determinations can be time consuming especially when the elderly person is otherwise incapacitated, in this case suffering from dementia.
[201] Legal Aid ACT, above n 20, 28.
[202] Samra, above n 50, 11
[203] Christodoulou v Christodoulou [2009] VSC 583, [76].
[204] ALRC Report, above n 1, 224; Social Security Act 1991 (Cth) ss 12A(2), 12C(3), 1118.
[205] Coumarelos et al, above n 36, 17.
[206] This complexity is perfectly illustrated by the case of Smith v Smith [2017] NSWSC 408. This case concerned the abuse of an EPOA by the widow (who herself was an elderly person) of the deceased (who had been suffering from dementia in the last few years of his life). In this case, the validity of the will was not challenged, rather the widow was accused of falling short in her fiduciary duties to the principal under the EPOA. This case required a complex examination of equitable principles regarding not only fiduciary duties, but also receipt of trust money by other beneficiaries to the will.
[207] For instance, in the ACT see Magistrates Court Act 1930 (ACT) s 257.
[208] Powers of Attorney Act 2006 (ACT) s 50; while an application by family members following the death of the elderly person, this was demonstrated in Alcazar-Stevens v Stevens [2017] ACTCA 12 involving a beneficiary of a will seeking an extension of time from the ACT Supreme Court to apply for a s 50(1) order under s 50(5) of the Powers of Attorney Act 2006 (ACT).
[209] ALRC Report, above n 1, 178, 218.
[210] Guardianship and Management of Property Act 1991 (ACT) s 62(2).
[211] ALRC Report, above 1, 375.
[212] Ibid 376.
[213] Harbison, above n 21, 95.
[214] ALRC Report, above n 1, 69.
[215] Billy Boland, Jemima Burnage and Hasan Chowhan, ‘Safeguarding Adults at Risk of Harm’ (2013) 346 BMJ 30, 32–3.
[216] ALRC Report, above n 1, 20.
[217] Re T (An Adult: Consent to Medical Treatment) [1992] EWCA Civ 18; [1992] 4 All ER 649.
[218] ALRC Report, above n 1, 395–6.
[219] Ibid 396.
[220] Ibid 393.
[221] Kelly Purser and Tuly Rosenfeld, ‘Assessing Testamentary and Decision-Making Capacity: Approaches and Models’ (2015) 23(1) Journal of Law and Medicine 121, 123.
[222] Ibid.
[223] Ibid.
[224] Children and Young People Act 2008 (ACT) s 349(1).
[225] Human Rights Act 2004 (ACT) s 12(3).
[226] Secretary-General, Follow-up to the Second World Assembly on Ageing: Report of the Secretary-General, 66th sess, UN Doc 66/173 (22 July 2011) 8–9 [28].
[227] Suzy Braye, David Orr and Michael Preston-Shoot, ‘Autonomy and Protection in Self-Neglect Work: The Ethical Complexity of Decision-Making’ (2017) 11(4) Ethics and Social Welfare 320, 326.
[228] Mental Health Act 2015 (ACT) s 7.
[229] ALRC Report, above n 1, 25.
[230] Ibid 378–9.
[231] Wendy Lacey, ‘Neglectful to the Point of Cruelty? Elder Abuse and the Rights of Older Persons in Australia’ [2014] SydLawRw 4; (2014) 36 Sydney Law Review 99, 101–2.
[232] Legal Aid ACT, above n 66, 4.
[233] Powers of Attorney Act 2006 (ACT) s 9; Mental Health Act 2015 (ACT) s 7.
[234] See Jennifer Moye, Daniel Marson and Barry Edelstein, ‘Assessment of Capacity in an Aging Society’ (2013) 68(3) American Psychologist 158.
[235] Tony Rosen, ‘Emergency Medical Services Perspectives on Identifying and Reporting Victims of Elder Abuse, Neglect and Self-Neglect’ (2017) 53(4) Journal of Emergency Medicine 573, 579.
[236] Kay Patterson, ‘Violence, Neglect and Abuse’ (Speech delivered at the 2017 UN Open-ended Working Group on Ageing, New York) <https://www.humanrights.gov.au/news/speeches/violence-neglect-and-abuse-un-oewga-new-york>.
[237] Coumarelos et al, above n 36, 361. Issues arise using the over 65 metric as an indicator are noted in the paper above.
[238] Christine Coumarelos, Zhigang Wei and Albert Zhou, ‘Justice Made to Measure: NSW Legal Needs Survey in Disadvantaged Areas’ (Report, Law and Justice Foundation of New South Wales, March 2006), 167.
[239] Susannah Sage-Jacobson, ‘Access to Justice for Older People in Australia’ (2015) 33 Law in Context 142, 150.
[240] E-Shien Chang, Xin Qi Dong, ‘Understanding Elder Abuse in the Chinese Community: The Role of Cultural, Social and Community Factors’ in the National Academy of Sciences, Elder Abuse and Its Preventions (National Academies Press, 2014), ChII.1.
[241] People with Disability Australia, Submission No 104 to Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Inquiry into Elder Abuse in New South Wales, 12 February 2016, 22.
[242] World Health Organisation, ‘Active Ageing: A Policy Framework’ (Report, World Health Organisation, April 2002), 29.
[243] See Adria Navarro et al, ‘Do We Really Need Another Meeting? Lessons from the Los Angeles County Elder Abuse Forensic Center’ (2010) 50(5) The Gerontologist 702.
[244] Mark Lachs and Karl Pillemer, ‘Elder Abuse’ (2015) 373 New England Journal of Medicine 1947, 1954.
[245] Ibid.
[246] Arlene Groh and Rick Linden, ‘Addressing Elder Abuse: The Waterloo Restorative Justice Approach to Elder Abuse Project’ (2011) 23(2) Journal of Elder Abuse & Neglect 127, 144.
[247] See Coumarelos, above n 36, 107 which details a number of reasons why a person delays taking legal action, such as having bigger problems, fear of damaging the relationship they have with the other party, the cost and the stress involved. These are factors which could prevent an older person from taking legal action until it becomes absolutely necessary.
[248] Xin Qi Dong, ‘Elder Abuse: Systemic Review and Implications for Practice’ (2015) 63 Journal of the American Geriatrics Society 1214, 1234.
[249] David Burnes, ‘Community Elder Mistreatment Intervention with Capable Older Adults: Toward a Conceptual Practice Model’ (2017) 57(3) The Gerontologist 409, 412.
[250] People with Disability Australia, above n 130, 7.
[251] Ashurst Australia, above n 15, 26.
[252] Ibid 24.
[253] Ibid 23.
[254] See Heather Craige, ‘The Practice of Social Work in Legal Services Programs’ (1982) 9(2) Journal of Sociology & Social Welfare 307.
[255] Elizabeth Peel, Helen Taylor and Rosie Harding, ‘Sociolegal and Practice Implications of Caring for LGBT People with Dementia’ (2016) 28(10) Nursing Older People 26.
[256] Sage-Jacobson, above n 128, 156–7.
[257] Ibid 157.
[258] See Senior Rights Victoria, Your Rights – Elder Abuse, Senior Rights Victoria <https://seniorsrights.org.au/your-rights/>.
[259] See Tanton, Miranti and Vidyattama, above n 18.
[260] Fiona Hum and Jennifer Faulkner, ‘Medical-Legal Partnerships: A New Beginning to Help Australian Children in Need’ (2009) 17 Journal of Law and Medicine 105, 105–6.
[261] Susan Ball, Cindy Wong and Liz Curran, ‘Health-Justice Partnership Development Report 2016’ (Report, Victorian Legal Services Board and Commissioner, July 2016) 3.
[262] Edward Paul et al, ‘Medical-Legal Partnerships: Addressing Competency Needs Through Lawyers’ (2009) 1(2) Journal of Graduate Medical Education 304, 305.
[263] Liz Bishop, Hana Shahkhan and Bebe Loff, ‘A Hospital-Based Patient Legal Clinic’ (2016) 23 Journal of Law and Medicine 678, 682–3; Elizabeth Tyler, ‘Medical-Legal Partnership in Primary Care: Moving Upstream in the Clinic’ [2017] American Journal of Lifestyle Medicine (forthcoming).
[264] Bishop, Shahkhan and Loff, above n 152, 679.
[265] Ibid 680.
[266] Population Health Division – ACT Health, ‘Health and Wellbeing of Older Persons in the Australian Capital Territory’ (Health Report No 63, ACT Government, May 2016) 31–2 <https://health.act.gov.au/sites/default/files/Health%20and%20Wellbeing%20of%20Older%20Persons%20in%20the%20ACT%20Report.pdf>.
[267] Dong, above n 137, 1234.
[268] This includes a bookmark containing a checklist with various factors which may indicate elder abuse such as lack of control over one’s money, medication or safety.
[269] ACT Government, Home Library Service (4 January 2018) ACT Government Libraries <https://www.library.act.gov.au/library_services/home-library-service>.
[270] Legal Aid ACT, above n 20, 14.
[271] Ibid 21.
[272] Ian Fletcher, ‘Can Specialised Family Mediation Prevent Elder Abuse in Australia’ (Paper presented at the Australian Mediation Conference, Sydney, 2012) 2.
[273] Samra, above n 50, 11.
[274] Gemma Smyth, ‘Mediation in Cases of Elder Abuse and Mistreatment: The Case of University of Windsor Mediation Services’ (2011) 30 Windsor Review of Legal and Social Issues 121, 129–30.
[275] Lise Barry, ‘Elder Mediation’ (2013) 24 Australasian Dispute Resolution Journal 251, 254–5.
[276] Fletcher, above n 161, 2.
[277] Productivity Commission, above n 46, 1020.
[278] Samra, above n 50, 20.
[279] Ibid 22.
[280] From internal numbers of Legal Aid ACT.
[281] Samra, above n 50, 20.
[282] See Productivity Commission, above n 46.
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