Blue Mountains Law Society—2017 Succession Law Conference
17 September 2017
Emeritus Professor Rosalind F Croucher AM
President, Australian Human Rights Commission[*]
THE ELDER ABUSE INQUIRY—AN INQUIRY MOST TIMELY
In 2002, the World Health Organization said that preventing elder abuse in an ageing world is ‘everybody’s business’. In finishing our report, Elder Abuse—A National Legal Response, we wanted to make this ‘everybody’s responsibility’.
The Elder Abuse Inquiry was most timely—given the problem, the challenge, and the opportunity of an ageing demographic. The Australian population, like other developed countries, is an ageing one—the combination of increasing life expectancy and lower fertility levels.. Approximately 15% of the population was aged 65 or over in 2014–15, and this is expected to rise to around 23% by 2055. A female child born in 1900 could expect to live to 59, but in 2017 can expect to live to 85.
The statistics are quite confronting, however you look at them: whether it’s in terms of the numbers of workers that will be needed to support an ageing population, or whether it’s the extent to which health services, and aged care services, and disability services will be needed in future, an ageing demographic provides a very intense opportunity for public policy concern. In fact a parliamentary report in 2007 referred to this as the ‘inescapable demographic destiny’ of an ageing population.
The experience of ageing is not uniform across Australian communities, however. Overall, ‘healthy life expectancy’—that is, the extent to which additional years are lived in good health—is increasing, and according to the Australian Institute of Health and Welfare (AIHW):
Men aged 65 in 2012 could expect to live 8.7 additional years disability-free and 6.7 further years with a disability, but without severe or profound core activity limitation. Women aged 65 in 2012 could expect 9.5 additional years disability-free and 6.7 years with a disability, but without severe or profound core activity limitation.
There are, however, significant variations in life expectancy among different groups in the population. For example, Aboriginal and Torres Strait Islander persons have a significantly lower life expectancy than other Australians:
For the Aboriginal and Torres Strait Islander population born in 2010–2012, life expectancy was estimated to be 10.6 years lower than that of the non-Indigenous population for males (69.1 years compared with 79.7) and 9.5 years for females (73.7 compared with 83.1).
In thinking about my own parents, who are both turning 96 this year, and what I would expect when I am their age, it is not to be infantilised, treated as a child, but to be respected. This was a guiding mantra for me in leading the Elder Abuse inquiry: a combination of ‘honour thy father and thy mother’, and ‘do unto others as you would have them do unto you’. The UN Principles for Older Persons express such commitments thus:
Older persons should be able to live in dignity and security and be free of exploitation and physical or mental abuse.
Older persons should be treated fairly regardless of age, gender, racial or ethnic background, disability or other status and be valued independently of their economic contribution.
WHAT IS ELDER ABUSE?
Elder abuse usually refers to abuse by family, friends, carers and other people where there is a relationship or expectation of trust. While there is not a universally accepted definition, a widely used description is that of the World Health Organization, referring to elder abuse 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.
Commonly recognised categories of elder abuse include psychological or emotional abuse, financial abuse, physical abuse, neglect, and sexual abuse. These types of abuse overlap, and the very nature of the abuse makes it difficult to identify and respond to. The World Health Organization has estimated that the prevalence rate of elder abuse in high- or middle-income countries ranges from 2% to 14%. So, while increasing longevity may be seen to represent triumphs for modern medicine and health care, elder abuse perhaps is the nasty underside of an ageing population.
There are many case studies that can be drawn upon to gain an understanding of the elder abuse landscape. The 2016 report by the Australian Institute of Family Studies (AIFS), Elder Abuse: Understanding Issues, Frameworks and Responses, commissioned as part of the background to the ALRC inquiry, and drawing upon Queensland elder abuse helpline information, provided many examples.
For example, using calls to the Queensland elder abuse helpline as a principal source of information, the AIFS study identified financial abuse as accounting for 40% of the most commonly reported type of abuse in 2014–15; and children in their 50s as the largest group of offenders.
Children in their 50s may be the biggest group of abusers—but many of these may also be carers. And for the few ‘bad eggs’ there are many angel sons and angel daughters out there. One of the personal submissions cautioned against ‘punishing those of us who are doing the right things for the sake of a few bad eggs makes a difficult situation that much more complicated and could prevent people from stepping up to care for the elderly’.
Remember that in 2017, there were 2.7 million unpaid carers in Australia. Their average age was 55, most were female and 96% were caring for family members. And in 2011, the Productivity Commission noted that, of the group aged 65+ who were needing care, 24% of primary carers were adult sons or daughters. Many of these may well have held enduring documents in their favour. Indeed for most people in such circumstances this is an important exercise of autonomy: they ‘got it in black and white’.
There is also a difference between ‘coercion’—forcing someone to do something against their wishes; and what I describe as ‘acquiescent exploitation’—where a person knows that others may think what they are doing as unwise but they decide to do it anyway, for a whole range of often very personal, self-sacrificing reasons.
Clearly, however, there are no bright lines.
WHAT CAN LAW DO?
In the Elder Abuse Inquiry we looked at Commonwealth laws and frameworks that seek to safeguard and protect older persons from misuse or abuse by formal and informal carers, supporters, representatives and others. There were Commonwealth laws, like banking, superannuation, social security and, of growing interest, aged care. But we were also asked to examine the interaction and relationship of Commonwealth laws with state and territory laws. This clearly took us into the realm of guardianship and administration; and into laws dealing with ‘private’ appointments of substitute decision makers through enduring powers of attorney and the appointment of enduring guardians. A great deal of our work therefore involved state and territory bodies and agencies. The crossing of state and federal borders makes responding to elder abuse a complex issue—both from the perspective of laws, but also in terms of practical responsibility.
As stakeholders observed, because elder abuse is ‘complex and multidimensional’, it requires a ‘multi-faceted response’. The ALRC contributed to that response with a set of 43 recommendations aimed at achieving a nationally consistent response to elder abuse. The ALRC has also looked to the horizon and developed a conceptual template to guide future reform.
The recommendations in the Report seek to balance two framing principles: dignity and autonomy, on the one hand; and protection and safeguarding, on the other. Autonomy and safeguarding, however, are not mutually inconsistent, as safeguarding responses also act to support and promote the autonomy of older people.
But sometimes protective measures may conflict with a person’s autonomy, such as where an older person refuses to accept support, or to report abuse to police. Where possible, the ALRC has sought to recommend changes to the law that both uphold autonomy and provide protection from harm, but where this is not possible, greater weight is often given to the principle of autonomy. Older people, like most adults, prize their freedom and independence, and do not wish to be treated like children or sheltered from all risk. Where ‘dignity of risk’ is often heralded in the context of supporting people with disability in their decision making, perhaps in the context of older people we are speaking of another iteration of this: ‘dignity in decline’. The autonomy of older people should not be afforded less respect than the autonomy of others. However, in limited cases, where there is particularly serious abuse of vulnerable people, protection should be given additional weight.
Autonomy is a significant aspect of a number of the United Nations Principles for Older Persons that underlie the ability of persons to make decisions and choices in their lives: particularly the principles of ‘independence’, ‘participation’ and ‘self-fulfilment’.
Dignity in the sense of the right to enjoy a self-determined life is particularly important in consideration of older persons with impaired or declining cognitive abilities. The importance of a person’s right to make decisions that affect their lives was a fundamental framing idea throughout the ALRC’s Equality, Capacity and Disability Inquiry. It reflects the paradigm shift towards supported decision making embodied in the UN Convention on the Rights of Persons with Disabilities and its emphasis on the autonomy and independence of persons with disabilities, so that it is the will and preferences of the person that drives decisions they make or that others make on their behalf, rather than an objective notion of ‘best interests’.
To put it plainly again, in a simple example: this approach requires asking mum what she wants first. Just because she has some cognitive impairment doesn’t necessarily mean that she doesn’t know what she wants; even if you think you know better, and even if it takes a while for her to say what it is that she does want. Carers here play a crucial role, sometimes just bringing a framework of reference of a lifetime to fill in the words or to translate the words that may be scrambled.
We needed to respond to the plea running through many of the personal submissions, that ‘someone’s got to do something!’ But, at the same time, to resist overzealousness, otherwise the balance between the principles is pushed too much to the ‘protective’ side.
WHAT THE ALRC RECOMMENDS
In addition to our framing principles, our recommendations embody what I describe as ‘the 3 Rs’: reducing risk; reporting and ensuring an appropriate response; and providing avenues for redress. There are also recommendations that look to the longer horizon, informing policy change into the future. The Report presents two of these as ‘book-ends’: one, the National Plan to combat elder abuse; and the second, the introduction of state and territory legislation for safeguarding adults ‘at risk’.
With respect to the specific areas of law identified in the Terms of Reference, the Report begins with a consideration of aged care: a large and growing area of Commonwealth responsibility, and on which there is much attention at the time of writing the Report. The next set of chapters and recommendations focus on advance planning by a person, and include: enduring documents, family agreements, superannuation, wills and banking. The remaining set of chapters looks at safeguarding against elder abuse in various settings: tribunal appointed guardians and administrators; social security; health and the National Disability Insurance Scheme; criminal justice responses; and ends with recommendations about new legislation in states and territories for safeguarding ‘at-risk’ adults.
I will give a few examples that are most directly relevant to the practice of lawyers.
Pressuring older people to make or change their wills in particular ways are examples of financial abuse, both in general guidelines on elder abuse and raised by stakeholders in the ALRC’s Inquiry. Almost 60% of adult Australians have made a will and 93% of people over 70 years of age have a will. With an ageing population, the potential site for elder abuse in the willmaking context can only grow. Practitioners can and should be placed in the best position they can be to contribute to its prevention.
Wills, as advance planning documents, are a key part of estate planning and are an expected part of a lawyer’s practice—either because it is the kind of practice the lawyer undertakes or as an aspect of serving the wishes of particular clients. A lawyer has an important role in supporting a client to make a will and understand its nature and content. A lawyer can also protect a client in situations of potential undue influence.
In a chapter dedicated to the topic of wills, we discussed the doctrines that deal with situations involving the understanding of testators and influence of one kind or another: testamentary capacity; undue influence in probate; the doctrine of suspicious circumstances and wills formalities. The ALRC also covers the topic of disqualification: the witness-beneficiary rule and the forfeiture rule.
In the context of an ageing population, lawyers may well become increasingly called upon to assist in the preparation and execution of advance planning documents. Lawyers may therefore be in a key position to recognise where clients may be affected by cognitive impairments or subject to undue pressure in relation to their preparation. To ensure that lawyers can play this crucial supportive role, they need to have an understanding of legal competency relevant to the particular context, and how to ensure that the documents are freely and voluntarily made by people who are legally competent to do so.
The ALRC tackles the elder abuse problem in the wills context through two recommendations: the first concerns improving lawyers’ understanding through national best practice guidelines; the second, focuses on community education to address the difficulties associated with ‘do-it-yourself’ wills.
What lawyers are required to know
A specific knowledge of succession law is not a compulsory requirement for admission to legal practice in Australia. Part 2 of the Legal Profession Uniform Admission Rules 2015 sets out the required ‘academic areas of knowledge’ for admission to practice in Australia, reflecting the work of the Law Admissions Consultative Committee. The topics of ‘property’ and ‘equity’ are included, but there is no specific requirement for knowledge of the substantive doctrines of succession law and the legal test of testamentary capacity. With respect to practical legal training, which is also required for admission to practice, ‘wills and estates practice’ is only an optional practice area.
More particular knowledge about matters relevant to supporting clients in the preparation of wills may be obtained in several ways. Law students may undertake optional units of study in succession law, where available. Lawyers may undertake continuing professional development in a relevant substantive law area related to succession matters, or become accredited specialists in some jurisdictions—as in New South Wales, Queensland and Victoria.
Many lawyers, therefore, will not necessarily have a good understanding of the range of matters relevant to the preparation and execution of wills and the ways to reduce undue influence. Hamilton Blackstone Lawyers observed, for example, that, while legal practitioners who specialise in estate planning ‘are already well-versed (or should be well-versed)’ in the range of matters included in the ALRC’s list, the ‘unfortunate reality’ is that ‘estate planning documentation is often not prepared by estate planning specialists: specifically, documentation is prepared by solicitors with little to no expertise in this space’.
Legal practitioners are also required to undertake mandatory continuing education on an annual basis. One common component concerns ethics and professional responsibility. The importance of continuing legal education was emphasised by stakeholders, and particularly for the national implementation of reforms.[17 ]The New South Wales Legislative Council also emphasised the role of continuing education. Its report, Elder Abuse in New South Wales, included a specific recommendation:
That the NSW Government liaise with Law Society of New South Wales to request that the Society include a unit on the assessment of mental capacity in respect of substitute decision making, wills and property transactions in its Continuing Professional Development Program for legal practitioners.
How lawyers are required to act
Even in the absence of specific subject knowledge, conduct rules reflect how lawyers are to behave in practice. Many aspects of these rules are relevant to matters reflected in the ALRC’s list. For example, the Australian Solicitors’ Conduct Rules 2015 include the following obligations:
- as a ‘fundamental ethical duty’, to act in the best interests of a client in any matter in which the solicitor represents the client;
- a solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken;[21 ]and
- a solicitor must follow a client’s lawful, proper and competent instructions.
While these rules depend on adoption in each state and territory, they are illustrative of conduct obligations nationally.
Improving lawyers’ understanding
With respect to improving lawyers’ understanding, to aid in combating elder abuse and to reduce undue influence in the making of wills, the ALRC recommended a national coordinated response, through national best practice guidelines developed by state law societies and the Law Council of Australia. Other professionals, such as financial advisers, may similarly benefit from improved understanding. The topics that the ALRC suggested should be included in such guidelines include matters such as:
(a) elder abuse in probate matters;
(b) common risk factors associated with undue influence;
(c) the importance of taking detailed instructions from the person alone;
(d) the need to keep detailed file notes and make inquiries regarding previous wills and advance planning documents; and
(e) the importance of ensuring that the person has ‘testamentary capacity’—understanding the nature of the document and knowing and approving of its contents, particularly in circumstances where an unrelated person benefits.
Paragraphs (a) and (b) are matters of general understanding about the dynamics of elder abuse and about family relationships in relation to property and how they may be manifested as improper or undue influence in the context of advance planning documents.
Paragraph (c) reinforces the lawyer’s role in supporting the client’s autonomy and to ensure that the person’s wishes are obtained personally and separately from anyone else. Paragraph (d) concerns best practice approaches to ensure that the client’s wishes are recorded fully so that any later challenge can be reviewed in the full context of the client’s instructions.
Paragraph (e) concerns the specific elements required to be established for testamentary capacity, should a will be challenged on the basis of a lack of capacity. Capacity questions may affect other transactions and lawyers need to understand the legal tests that apply and support a client in circumstances where capacity issues may be raised.
A number of state law societies have prepared or endorsed guidelines on a range of topics included in the ALRC’s recommendation, particularly relating to legal capacity: as in Victoria; New South Wales; Queensland; and South Australia.
In its report, Succession Laws, in 2013, the Victorian Law Reform Commission (VLRC) acknowledged the availability of such resources for legal practitioners on assessing legal capacity when this was in doubt, but recommended that more was needed. To minimise the risk of undue influence, the VLRC recommended that the Law Institute of Victoria, as the professional body of Victorian legal practitioners, should prepare best practice guidelines ‘on the detection and prevention of undue influence when preparing a will’.[28 ]The VLRC also said that the guidelines could draw from existing guides and resources that document best practice when taking instructions for a will. The matters in the ALRC’s recommendation are similar to ones recommended by the VLRC and are designed to reduce the risk of undue influence.
A national approach
The ALRC advocates a national approach and affirms the important role that law societies and the Law Council can play in assisting lawyers to identify critical issues relating to elder abuse, including with respect to: legal capacity; undue influence; entering into guarantees and reverse mortgages in the interests of others; and misuse of influence by carers. A coordinated national approach would assist in overcoming the problem identified by a group of QUT academics, ‘that each of these sets of guidelines is being produced independently of the others’, which may ‘cause confusion and undermine attempts at establishing best practice’. The QUT group also noted the importance of involving other professionals in developing guidelines on capacity assessment.
Enduring powers of attorney and enduring guardianship (together referred to as ‘enduring documents’) are important tools that allow people to choose who will make decisions for them, should they later lose decision-making ability. These decision-makers can play a key role in protecting people with impaired decision-making ability from abuse. There are great variations across the states and territories, which are set out in the Report in table form.
However, these arrangements may also facilitate abuse by the decision maker themselves. Many examples were given by stakeholders. The ALRC recommends reforms to laws relating to enduring documents, including: adopting nationally consistent safeguards; giving tribunals jurisdiction to award compensation when duties are breached; and establishing a national online register.
Safeguards against the misuse of an enduring document in state and territory legislation should:
(a) recognise the ability of the principal to create enduring documents that give full powers, powers that are limited or restricted, and powers that are subject to conditions or circumstances;
(b) require the appointed decision maker to support and represent the will, preferences and rights of the principal;
(c) enhance witnessing requirements;
(d) restrict conflict transactions;
(e) restrict who may be an attorney;
(f) set out in simple terms the types of decisions that are outside the power of a person acting under an enduring document; and
(g) mandate basic requirements for record keeping.
To take one example, there is a wide range of approaches to witnessing enduring documents across the states and territories: this is set out in two tables included as Appendixes to the report. What we suggest by enhanced witnessing requirements is that there should be two witnesses; and one of these should be a professional whose licence to practise is dependent on their ongoing integrity and honesty and who is required to regularly undertake a course of continuing professional education that covers the skills and expertise necessary to witness an enduring document. We also suggest that the witness needs to certify, as suggested by the Law Council of Australia, that
the witness is not aware of anything that causes them to believe that:
- the principal did not freely and voluntarily sign the document;
- the principal did not understand the nature of the document; or
- the enduring attorney did not freely and voluntarily sign the document.
The final requirement in enhanced witnessing is that the attorney’s signature also needed to be witnessed and that the witnesses certify that the attorney was signing voluntarily and understood the nature of the document. This was designed to address a key concern with respect to the misuse of enduring documents, namely that the attorney did not understand the nature of their role and the limits on their authority.
Requirements like these will help to ‘settle the siblings’ and reassure other family members.
We also recommended the development of a national registration scheme based on nationally consistent laws—provided such scheme is user-friendly and low cost. A model referred to is the Personal Property Securities Register, introduced in 2012.
We also addressed the topic of redress and recommended that state and territory civil and administrative tribunals be give a power to order compensation for misuse of enduring documents, based on the Victorian model of redress in a no-cost jurisdiction.
A significant proportion of the wealth of older people is held in superannuation funds, making it one of the potential ‘golden eggs’ for elder abuse, and a target for ‘inheritance impatience’, including the use of deception, threats or violence to coerce a person to contribute, withdraw or transfer superannuation funds for the benefit of the abuser. Issues concerning binding death benefit nominations was another of the topics considered in the ALRC report, in chapter 7.
Stakeholders identified a diverse range of instances of financial abuse of older people through unauthorised access to superannuation funds. ASIC highlighted a number of examples of potential financial elder abuse in the context of superannuation:
instructions to take a portion of a superannuation benefit as a lump sum rather than a pension may as much reflect the importance to the elder fund member of paying down debt, or facilitating new accommodation arrangements as action by an abuser to access superannuation money for their own benefit.
... instructions to continue drawdown of only the statutory minimum amount of an account based pension may reflect the active management of the elder person’s longevity risk, rather than maximising the value of a death benefit that may become payable to an abuser.
... instructions in relation to the part commutation of an elder person’s account based pension may as much reflect the need to meet a ‘lumpy expense’, such as in relation to health care, as action by an abuser to access superannuation money for their own benefit.
Legal framework for death benefit nominations
The payment of the superannuation funds of a member on the member’s death is a matter determined by the governing rules of the superannuation fund. As a matter of trust law, a trustee is not able to delegate the exercise of their powers under the trust, except to the extent permitted under the trust instrument itself, or by virtue of legislation. Similarly, as a general rule, the beneficiaries cannot direct the trustee how to exercise a discretionary power.
The language and types of nominations vary greatly and the expanding scope and value of superannuation means that clarity in understanding from the perspective of fund members and trustees is important. In Retail Employees Superannuation Pty Ltd v Pain  SASC 121, Blue J identified problems in relation to the legislative provisions concerning BDBNs, ss 58 and 59 of the Superannuation Industry (Supervision) Act 1994 (Cth) and reg 6.17A of the Superannuation Industry (Supervision) Regulations 1994 (Cth), and suggested that it was ‘highly desirable’ that the provisions ‘be reviewed by the Commonwealth and recast’.
One area of uncertainty, for example, is whether an enduring attorney can, or should be able to, make a BDBN on behalf of their principal.
In Determination D07–08\030, the Superannuation Complaints Tribunal stated that, in principle, an EPOA would permit an attorney to complete and sign a BDBN on behalf of the member. As the Tribunal did not decide the matter on the basis of the binding nomination, however, its comments are not of direct application. Hence, the Law Council of Australia observed that ‘[w]hether the scope of an attorney’s authority extends to making a nomination remains a matter of debate’.
A number of stakeholders provided very informed submissions on the matter of BDBNs: the Law Council of Australia, several law firms, financial planners and chartered accountants. With respect to the existing position in relation to BDBNs, a common argument was that the making of a BDBN should be seen as different from the renewal of a BDBN. In this context there is a problem of the ‘lapsing binding death benefit nomination’. Reg 6.17A states that a notice under 6.17A(4) ceases to have effect after three years. But there can also be ‘non-lapsing binding death benefit nominations’, if superannuation fund rules permit them.
Where BDBNs lapse, a specific policy issue is whether a person who is an attorney under an EPOA should be able to confirm the nomination so that it continues to have validity. Where there is no BDBN there are two distinct issues: the legal issue of whether a person who is an attorney under power can make a nomination in exercise of that power; and the policy issue of whether they should be able to do so.
Richard Williams and Brian Herd explain that the legal issue contains several sub-questions. First, the issue needs to be considered under state and territory EPOA legislation—for example, whether a power in relation to ‘financial affairs’ encompasses the making of a BDBN; and, secondly, under the specific terms of the instrument of appointment itself. Further, the attorney under power, as a fiduciary, would be subject to restrictions as a matter of law on the way any such power may be exercised. Hence, as Williams and Herd conclude:
Even if an attorney under an EPOA has a sufficiently wide scope of authority to act on behalf of their principal in respect of superannuation, the provision by the attorney of a notice to a superannuation trustee that would have the effect of conferring a benefit on the attorney, or increasing the value of such benefit would (absent any special condition to the contrary) clearly amount to a breach of the attorney’s duties. The revocation of an existing nomination, in order to increase the likelihood of a trustee making payment of a death benefit to the member’s legal personal representatives, in circumstances where the attorney is a beneficiary under the member’s will or on intestacy, would give rise to the same issue.
A separate issue is the extent to which superannuation laws allow for this. As Williams and Herd explain, reg 6.17A stipulates two distinct acts to be done by a member: the signature of the notice by the member, and the giving of the notice to the trustee. While they suggest that ‘it is arguable that the acts of signature and of giving the notice are capable of being performed by an attorney’, the matter is not ‘beyond doubt’. Noting the difference in the requirements of making and confirming a nomination, Williams and Herd suggest:
This may explain why some practitioners suggest that an attorney under an EPOA may renew a nomination, but not make, revoke or alter a nomination. In the absence of any express statement to that effect in the legislation, that view does not appear to be sufficiently supported by the terms of regulation 6.17A itself.
Uncertainty is ‘a peculiarity that needs resolution’, because, as Williams and Herd conclude:
For many persons, a binding death benefit nomination will form an integral part of their estate planning, as it should ensure (or, at least, increase the likelihood) that the relevant assets pass as the member intends.
In the Discussion Paper, the ALRC expressed the policy position that an attorney should not be able make a BDBN on behalf of a member and that the legislative uncertainty should be clarified in line with this. This was based on the analogy made between BDBNs and wills and, as wills can only be made by a person with legal capacity, the ALRC concluded that a person holding an enduring power of attorney should not be able to sign a binding death benefit nomination on behalf of the member. As the role of an enduring attorney is one focused on the lifetime transactions and needs of the person, the ALRC concluded that it was not appropriate for such a person to make a binding death benefit nomination that was will-like in effect.
The Law Council of Australia considered that it would be desirable if the SIS Act and SIS Regulations were amended to make clear ‘that a person appointed under an enduring power of attorney cannot make (confirm, amend or revoke) a BDBN (or a non-lapsing nomination or a non-binding nomination) on behalf of a member ... unless this is expressly authorised in the document by specific reference to the making of BDBNs (or other nominations)’:
At present this is an area of significant confusion for superannuation funds, with some funds allowing the holder of an enduring power of attorney to make, amend or revoke a BDBN, and other funds not allowing this. The issue has not been tested before the Courts. Conflict issues also commonly arise, where the holder of the enduring power of attorney is an individual who would benefit from the making, amendment or revocation of a BDBN. Such issues can be addressed by the inclusion of specific authorising provisions in the relevant power of attorney, but there may then be further complexity with the correct drafting of such documents. In any event, the authorisation should be express, and should include the ability to nominate the attorney themselves and to amend the BDBN (or other nomination) in their own favour if this is desired by the member.
The issue of express authorisation was also raised by the Financial Services Council, which said that an attorney should only be able to make or renew a BDBN on behalf of a member if expressly authorised by the instrument itself. The ALRC suggested that this is a matter that should be considered as part of the recommended review. While the ALRC expressed a policy position against a person under an EPOA being able to make a nomination on behalf of the member, the ALRC did not analyse the question of express authorisation in the EPOA itself. This is a matter that may require more investigation.
A similar issue may be raised in relation to someone appointed by a tribunal as a financial administrator of a person who has lost, or who has diminished, decision-making ability. If a financial administrator is given wide powers in relation to financial matters, then the analysis here may also apply to a financial administrator in such a case.
The ALRC also acknowledged, however, that the policy question is a wide one and needs to address not only whether an attorney under an EPOA, or a financial administrator appointed with respect to a person’s financial affairs, should be able to make a nomination, but also the other situations addressed in reg 6.17A: namely, confirming, altering and revoking a nomination.
A concern to be able to respond to changes in circumstances in the superannuation context was raised by stakeholders. Hamilton Blackstone Lawyers suggested that the non-lapsing death benefit nominations, offered by many superannuation funds, already provided flexibility to deal with changes in circumstances, ‘in that the trustee of the superannuation fund can exercise its discretion to withdraw its consent to the nomination if the member’s circumstances have changed’. The ALRC acknowledges that, while this is one mechanism for responding to changes in circumstances, it puts matters in the hands of the trustees to honour, or not, the wishes as expressed in the nomination. The alternative, as in the case of wills, is to revoke the nomination in such a case, allowing for a new nomination to be made to reflect the change in circumstances. The ALRC considers that such similarities and differences are best considered in a full review.
The Public Trustee of Queensland referred to experience in acting as administrator for adults with impaired decision-making ability and suggested that attorneys should have the power to make a BDBN, for example where:
Circumstances have changed such that it is demonstrably clear that an existing binding nomination should be changed, or effectively withdrawn (for example a binding nomination to a spouse where the relationship has ended).
The need to renew a nomination that lapses, after a person loses capacity, was a concern for the Senior Rights Service (SRS) in light of the person’s ‘estate planning requirements’. SRS was concerned that other protections were needed in such a case. The Financial Planning Association gave another example:
For example, if the principal had not disclosed to his children the existence of a sibling, and the family wanted to treat the newly found child equally. Exceptions to the prohibition should apply under a court order in certain circumstances.
The ALRC considered that changes in circumstances can be addressed in two ways, both based on analogy from wills laws. One is the involuntary revocation approach on marriage and dissolution of marriage, another is through a process of approval, in the wills context known as ‘statutory wills’.
A basic principle of wills formalities is that a person is required to have testamentary capacity when making a will. If a person was regarded as no longer having testamentary capacity, any will made by such person would be void. Now, however, under strict conditions, wills can be authorised by the court in all states and territories where a person is regarded as having lost, or never having had, legal capacity. In the succession context it is a relatively new jurisdiction for the court to be able to approve these ‘statutory wills’. It is exercised cautiously, given the importance accorded to testamentary freedom as a valued property right.
There may be an opportunity to consider an analogous process in relation to BDBNs, as part of the broader considerations about how such nominations operate. Such an approach could sit alongside the policy position that an attorney under an EPOA, by virtue of that power alone, should not be able to make a BDBN for a member of a superannuation fund.
If a member dies, then any superannuation balance is paid in accordance with the rules of the fund. That balance may well form part of the member’s estate in due course. A person who holds an EPOA may apply for a statutory will on behalf of the member during the member’s lifetime, but that is an entirely different matter from seeking to use the EPOA to make the death benefit nomination on behalf of the member. The application for a statutory will is subject to the strict scrutiny of the court. Whether the authorisation of a court should be required, or some other analogous process, is a matter for consideration in the recommended review. Stakeholders such as the Law Council of Australia and the Law Society of South Australia supported such an approach.
A thorough review of the key BDBN provisions will generate coherency and clarity to an area of law that will increasingly affect older Australians, supporting them in the exercise of their wishes but also making clear the limits on the role of a person holding an EPOA. Both conceptually and practically this topic needs attention.
Another potential site for elder financial abuse concerns what we can loosely describe as ‘family agreements’. Some involve an older person transferring the title to their home, or the proceeds from the sale of the home or other assets, to an adult child in exchange for ongoing care, support and housing. These ‘assets for care’ arrangements are typically made without legal advice and are often not put in writing. There can be serious consequences for the older person if the promise of ongoing care is not fulfilled, or the relationship breaks down. The older person may not want to sue their own children, even though they may be left without a place to live.
The following is one of many examples given to the ALRC. This one was provided by Legal Aid ACT:
Barry, an eighty five year old man transferred his unencumbered home in the ACT to one of his adult children, Angela. Angela had promised to build a granny flat for Barry and take care of him until his death. There was no written agreement, however Barry had been living in his granny flat on Angela’s property for approximately 5 years.
Angela remarried and advised Barry that the arrangement could not continue and demanded he leave his home. Barry was devastated by Angela’s actions, however was able to go live with another child, Stephanie and did not want to seek any legal recourse against Angela as he was ‘too old and it was too hard’ and he felt so ashamed about what had happened to him.
The ALRC recommends that tribunals be given jurisdiction over disputes within families with respect to these arrangements. Tribunals provide a low cost and less formal forum for resolving such disputes.
The ALRC also recommends that the Social Security Act 1991 (Cth) be amended to require that assets for care agreements (which give what is described as a ‘granny flat interest’, a term I think should be removed from the dictionary and replaced with something: like ‘dower house’) be expressed in writing, for the purpose of calculating the Age Pension. This is an example of ‘frontloading’ protections. The ALRC has sought to address specific concerns raised by stakeholders that Centrelink policy is encouraging older people to enter into assets for care arrangements in a manner that may be disadvantageous. This recommendation uses the engagement with Centrelink as a lever to improve the position of a person entering into an arrangement captured by this policy.
Safeguarding adults at risk
In the final chapter of the Report, the ALRC recommends the introduction of adult safeguarding laws in each state and territory. Most public advocates and guardians already have a role in investigating abuse, particularly abuse of people with impaired decision-making ability, but there are other vulnerable adults who are being abused, many of them older people. The ALRC recommends that these other vulnerable adults should be better protected from abuse. I acknowledge the work of Professor Wendy Lacey, a co-author of the Closing the Gaps report and the Co-Convenor of the Australian Research Network on Law and Ageing, who summarised the need for adult protection legislation in Australia:
Until strategies are backed by legislative reform, vulnerable adults will continue to fall through the cracks of existing protective mechanisms and specialist services. State-based frameworks presently contain a number of significant flaws: there is no dedicated agency with statutorily mandated responsibility to investigate cases of elder abuse, coordinate interagency responses and seek intervention orders where necessary; ... referral services between agencies can provide partial solutions in cases of elder abuse, but do not encourage a multi-disciplinary and multi-agency response in complex cases.
In addition to the support and protection often provided by family, friends, neighbours and carers, support and protection is currently available for older people experiencing abuse from a number of government agencies and community organisations, including:
- the police and the criminal justice system—the primary state protection against elder abuse;
- medical and ambulance services;
- elder abuse help lines, which can provide information and refer people to other services;
- advocacy services;
- community based organisations, such as women’s services, family violence prevention legal services, and community housing organisations;
- state and territory public advocates and guardians (where the person has limited decision-making ability);
- aged care service providers, such as nursing homes, which must not only meet certain standards of care but are also required to report allegations of abuse by staff and other people in aged care; and
- the Aged Care Complaints Commissioner, who investigates and conciliates complaints about aged care.
Despite this, the protection and support available to adults at risk of abuse may be inadequate.
No government agency in Australia has a clear statutory role of safeguarding and supporting adults. Most public advocates and guardians in Australia have some responsibility to investigate the abuse of people with limited decision-making ability, but not of other adults at risk of abuse.
Public advocates and guardians play a crucial role in protecting people with limited decision-making ability and there is a case for giving them additional powers to investigate the abuse of these people. However, many vulnerable and older people do not have such decision-making limited ability but nevertheless also need support and protection.
The ALRC recommends that adult safeguarding services be provided to other at-risk adults, which should be defined to mean adults who: (a) need care and support; (b) are being abused or neglected, or are at risk of abuse or neglect; and (c) cannot protect themselves from the abuse. Some, but by no means all, older people will meet this definition.
In most cases, safeguarding and support should involve working with the at-risk adult to arrange for health, medical, legal and other services. In some cases, it might also involve seeking court orders to prevent someone suspected of abuse from contacting the at-risk adult. Where necessary, adult safeguarding agencies should lead and coordinate the work of other agencies and services to protect at-risk adults.
Existing public advocates and public guardians have expertise in responding to abuse, and may be appropriate for this broader safeguarding function, if given additional funding and training. However, some states or territories may prefer to give this role to another existing body or to create a new statutory body.
The ALRC recommends that consent should be obtained from the at-risk adult, before safeguarding agencies investigate or take action about suspected abuse. This avoids unwanted paternalism and shows respect for people’s autonomy. However, in particularly serious cases of physical abuse, sexual abuse or neglect, the safety of an at-risk person may sometimes need to be secured, even without their consent. Where there is serious abuse, safeguarding agencies should also have coercive information-gathering powers, such as the power to require people to answer questions and produce documents.
The ALRC also recommends statutory protections from civil liability, workplace discrimination laws and other consequences that might follow from reporting suspected abuse to authorities. Protocols about reporting abuse should also be developed for certain professionals who routinely encounter elder abuse.
National Plan to combat elder abuse
The capstone recommendation of the Report is the development of a National Plan to combat elder abuse to provide the basis for a longer term approach to the protection of older people from abuse. The Plan will provide the opportunity for integrated planning and policy development. We suggest a conceptual template for a National Plan and provide a wide range of examples from stakeholders, drawn from over 400 submissions—sharing ideas, illustrations, suggestions and urgings. In a practical sense, much work already undertaken and in train, both at the Commonwealth level and in states and territories, together with recommendations throughout the Report, may be seen to constitute strategies in implementation of a commitment to combat elder abuse. The significant attention already on issues concerning family violence has provided, as St Vincent’s Health Australia observed, ‘a climate of opportunity’, for a national consideration of elder abuse. Where child abuse and family violence are now ‘firmly at the centre of public policy debates’, said the Welfare Rights Centre (NSW), ‘[p]lacing elder abuse on the national agenda must also be a priority. Elder abuse is an issue that, finally, has come of age’.
A national planning process offers the opportunity to develop strategies beyond legal reforms, including: national awareness and community education campaigns; training for people working with older people; elder abuse helplines; and future research agendas.
The Australian Government has already committed to a prevalence study, and steps have been taken in this direction with the completion of a scoping study by the Australian Institute of Family Studies in May 2017. This is a significant step towards improving the evidence base to inform policy responses.
A national planning process would help to ameliorate the problems of the distribution of powers in a federal system in which many issues that arise in a consideration of ‘elder abuse’ sit across federal/state jurisdictional lines. Developing a National Plan will also provide the opportunity to continue and focus national conversation and engagement. Anglicare (SA) suggested that a national approach would ‘promote improved governance through consistent practice’ and would lead to ‘increased awareness and improved response to elder abuse through the embedding of a consistent supportive framework’.
There is clear commitment and support for a National Plan to combat elder abuse in Australia. The next questions are how a national plan should be developed, and what shape it should take.
The ALRC suggests that the National Plan should identify goals, including:
(a) promoting the autonomy and agency of older people;
(b) addressing ageism and promoting community understanding of elder abuse;
(c) achieving national consistency;
(d) safeguarding at-risk adults and improving responses; and
(e) building the evidence base.
These goals are not completely discrete areas and they are suggested as indicative of key objectives of the National Plan. The National Plan should then identify a range of strategies and actions in pursuit of these goals. The ALRC’s recommendations in this Report are situated within this framework and mapped under them, together with many initiatives identified by stakeholders.
The National Plan to combat elder abuse needs clear leadership. The ALRC recommends that the planning process should be led by a steering committee. The Law, Crime and Community Safety Council (LCCSC) of COAG has established a working group to discuss current activities to combat elder abuse in Australian jurisdictions, consider potential national approaches, and consider the findings of this Inquiry. The LCCSC is well placed to take a lead role in coordinating a planning process. The important role that COAG can play, expressing a commitment of all governments at a senior level, was identified by stakeholders. The Age Discrimination Commissioner, the Hon Dr Kay Patterson AO, is well placed to lead a number of strategies and actions of the Plan, involving key stakeholder groups and will be a fine champion of our work, having served on our Advisory Committee as well.
The overall effect of the ALRC’s recommendations in this Report, Elder Abuse—A National Legal Response, will be to safeguard older people from abuse and support their choices and wishes through:
- improved responses to elder abuse in aged care;
- enhanced employment screening of aged care workers;
- greater scrutiny regarding the use of restrictive practices in residential aged care;
- building trust and confidence in enduring documents as important advance planning tools;
- protecting older people when ‘assets for care’ arrangements go wrong;
- banks and financial institutions protecting vulnerable customers from abuse;
- better succession planning across the SMSF sector; and
- adult safeguarding regimes protecting and supporting at-risk adults.
These outcomes should be further pursued through a National Plan to combat elder abuse and new empirical research into the prevalence of elder abuse.
This Inquiry has acknowledged that elder abuse is indeed ‘everybody’s business’. It is also everybody’s responsibility—a responsibility not only to recognise elder abuse, but most importantly, to respond to it effectively. The recommendations in this Report address what legal reform can do to prevent abuse from occurring and to provide clear responses and redress when abuse occurs.
Ageing eventually comes to all Australians and ensuring that all older people live dignified and autonomous lives free from the pain and degradation of elder abuse must be a priority.
[*] This presentation draws from the work of the ALRC in the Elder Abuse inquiry. I led the inquiry and was formerly President of the ALRC. Where additional comment is given in speaking to the presentation, this should be regarded as my own remarks and not necessarily those of the ALRC—or of the Australian Human Rights Commission, of which I have been President since 30 July 2017.
 World Health Organization, The Toronto Declaration on the Global Prevention of Elder Abuse (2002).
 Australian Bureau of Statistics, Reflecting a Nation: Stories from the 2011 Census, 2012–2013: Who are Australia’s Older People? Cat No 2071.0 (2012). Population ageing is also a global phenomenon. In 1950, 8% of the world’s population was 60 years or older. In 2011, this rose to 11%, and it is projected to rise to 22% by 2050: World Economic Forum, Global Agenda Council on Ageing Society, Global Population Ageing: Peril or Promise? (2011) 5.
 Parliament of the Commonwealth of Australia, House of Representatives Standing Committee on Legal and Constitutional Affairs, Older People and the Law, September 2007, vi.
 Ibid 82.
 Australian Institute of Health and Welfare, Australia’s Welfare 2015 (2015) 237.
 Australian Institute of Health and Welfare, above n 4.
 United Nations Principles for Older Persons, GA Res 46/91, UN GAOR, 46th Session, 74th Plen Mtg, Agenda Item 94(a), UN Doc A/RES/46/91 (16 December 1991) –.
 World Health Organization, The Toronto Declaration on the Global Prevention of Elder Abuse (2002).
 Y Lawrence, Submission 202.
 Productivity Commission, Caring for Older Australians (Report No 53, 2011) 326–7.
 See chapter 8 of the report and also ‘Elder abuse: time for a national legal response’ (2017) 36 Law Society Journal 73.
 Cheryl Tilse et al, 'Having the Last Word? Will making and Contestation in Australia' (University of Queensland, 2015) 8.
 Set out, eg, in Law Admissions Consultative Committee, Uniform Principles for Assessing Qualifications of Overseas Applicants for Admission to the Australian Legal Profession (February 2015) sch 1.
 Hamilton Blackstone Lawyers, Submission 270.
 The requirements in each state and territory are set out on the website of the relevant professional body: the Law Institute of Victoria and the Law Society in the other states and territories.
 See, eg, Australian Research Network on Law and Ageing, Submission 262; W Bonython and B Arnold, Submission 241; Costantino & Co, Submission 225.
[17 ] Seniors Rights Victoria, Submission 383.
 Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, Elder Abuse in New South Wales (2016) rec 8.
 The Australian Solicitors’ Conduct Rules were made as the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 under the Legal Profession Uniform Law which commenced in New South Wales and Victoria on 1 July 2015. The Rules have also been adopted in Queensland and South Australia. Law societies in other states and the territories continue to work towards adoption of the Rules, according to the processes and approvals set out in their respective local legal profession regulatory arrangements. In March and April 2015 the Law Council of Australia approved a number of minor changes to the Conduct Rules, republished as the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015: see Law Council of Australia, Australian Solicitors Conduct Rules (2015).
 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 [4.1.1].
[21 ] Ibid [7.1].
 Ibid [8.1].
 Examples of guides on the different tests are: Law Society of New South Wales, When a Client’s Mental Capacity Is in Doubt—A Practical Guide for Solicitors (2016) 13–15; Allens Linklaters and Queensland Advocacy Incorporated, Queensland Handbook for Practitioners on Legal Capacity (2014) 59–69; Law Society of South Australia, Client Capacity Committee, Statement of Principles with Guidelines (2012) 28–41; Law Institute of Victoria, LIV Capacity Guidelines and Toolkit: Taking Instructions When a Client’s Capacity Is in Doubt (2016) 3.
 Law Institute of Victoria, LIV Capacity Guidelines and Toolkit: Taking Instructions When a Client’s Capacity Is in Doubt (2016).
 Law Society of New South Wales, When a Client’s Mental Capacity Is in Doubt—A Practical Guide for Solicitors (2016). The Law Society has also produced a quick access information sheet for lawyers on wills and estates: Law Society of New South Wales, Wills & Estates FAQs <www.lawsociety.com.au>.
 Allens Linklaters and Queensland Advocacy Incorporated, Queensland Handbook for Practitioners on Legal Capacity (2014). The handbook was endorsed by Queensland Law Society.
 Law Society of South Australia, Client Capacity Committee, Statement of Principles with Guidelines (2012).
[28 ] Victorian Law Reform Commission, Succession Laws, Report (2013) rec 1.
 Ibid [2.58]. The VLRC noted in particular, British Columbia Law Institute, ‘Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide’ (61, 2011); Kenneth Schulman, ‘Assessment of Testamentary Capacity and Vulnerability to Undue Influence’ (2007) 164(5) American Journal of Psychiatry 725; O’Neill and Peisah, above n 32, ch 4.
 Victorian Law Reform Commission, Succession Laws, Report (2013) [2.57].
 Dr Kelly Purser, Dr Bridget Lewis, Kirsty Mackie and Prof Karen Sullivan, Submission 298.
 Ibid. The importance of involving health practitioners was also emphasised by W Bonython and B Arnold, Submission 241. They pointed to the error of ‘conflating common diagnostic tests for cognitive impairment with the test for legal capacity’ and ‘failure to recognise the context-dependent nature of legal capacity’. The need to reach other professional service providers was also identified: Financial Planning Association of Australia (FPA), Submission 295.
 See, eg, Seniors Rights Service, Submission 169.
 A point made, eg, by Relationships Australia Victoria, Submission 356.
 This is considered in chapter 7 of the report, and see ‘Death benefit nominations & substitute decision makers: ALRC Elder Abuse Report’ (2017) 37 Law Society Journal 76.
 Australian Bureau of Statistics, Household Income and Wealth, Australia, 2013-14: Superannuation in Australia, 2003-04 to 2013-14, Cat No 6523.0 (2016).
 See, eg, FINSIA, Submission 339; Townsville Community Legal Service Inc, Submission 141; ASIC, Submission 125.
 Australian Securities and Investments Commission, Submission 125.
 Halsbury’s Laws of Australia, Title 430, ‘Trusts’, (D) ‘Trustees’ Power to Delegate and Employ Agents’, [430-4385] ‘Duty not to delegate and exceptions’; JD Heydon and Mark Leeming, Jacob’s Law of Trusts in Australia (LexisNexis Butterworths, 7th ed, 2006) . The rule is expressed in the Latin maxim ‘delegatus non potest delegare’.
 Halsbury’s Laws of Australia, Title 430, ‘Trusts’, (B) ‘Exercise of Powers of Trustees’, [430-4345] ‘Influence of view of third parties on exercise of power’.
 Retail Employees Superannuation Pty Ltd v Pain  SASC 121, .
 Law Council of Australia, Submission 61.
 Richard Williams and Brian Herd, ‘An Enduring Question: To What Extent Can Those Appointed under an Enduring Power of Attorney in Australia Make, Revoke, Alter or Confirm a Superannuation Death Benefit Nomination?’  (March) STEP Journal 18, 25.
 Ibid 27.
 Ibid, 27.
 Ibid, 27, 28.
 Law Council, Submission 351.
 Financial Services Council, Submission 359. Similarly: SMSF Association, Submission 382.
 See Report, ch 10.
 The definition of ‘legal personal representative’ includes a person holding an enduring power of attorney, but does not refer to an appointed financial administrator: Superannuation Industry (Supervision) Act 1993 (Cth) s 10(1).
 A further issue concerns the non-renewal of a BDBN: if an attorney under an EPOA is able to make a nomination, the attorney may also choose not to do so, which may have beneficial consequences for the attorney or the attorney’s family members pursuant to the will or intestacy of the fund member.
 See, eg, Seniors Rights Service, Submission 296; Financial Planning Association of Australia (FPA), Submission 295; Hamilton Blackstone Lawyers, Submission 270.
 Hamilton Blackstone Lawyers, Submission 270.
 See Croucher and Vines, [9.2]–[9.9]; Dal Pont and Mackie, [5.23]–[5.41].
 Public Trustee of Queensland, Submission 249.
 Seniors Rights Service, Submission 296. See also Institute of Legal Executives (Vic), Submission 320.
 Financial Planning Association of Australia (FPA), Submission 295.
 Supported, eg, by Law Council, Submission 351.
 See, eg, Croucher and Vines, ch 6.
 Succession Act 2006 (NSW) ss 18–26; Succession Act 1981 (Qld) ss 21–28; Wills Act 1936 (SA) s 7; Wills Act 2008 (Tas) ss 21–28; Wills Act 1997 (Vic) ss 21–30; Wills Act 1970 (WA) s 40; Wills Act 1968 (ACT) ss 16A–16I; Wills Act 2000 (NT) ss 19–26.
 See, eg, Croucher and Vines, [6.11]–[6.20].
 Law Council of Australia, Submission 351; Law Society of South Australia, Submission 381.
 See chapter 6 of the report.
 Legal Aid ACT, Submission 58.
 See chapter 14 of the Report.
 Wendy Lacey, ‘Neglectful to the Point of Cruelty? Elder Abuse and the Rights of Older Persons in Australia’ (2014) 36 Sydney Law Review 99, 105.
 Human Rights Commission Act 2005 (ACT) s 27B; Guardianship of Adults Act 2016 (NT) s 61; Guardianship and Administration Act 2000 (Qld) sch 4; Public Guardian Act 2014 (Qld) s 19; Guardianship and Administration Act 1993 (SA) s 28; Guardianship and Administration Act 1995 (Tas) 1995 s 17; Guardianship and Administration Act 1986 (Vic) s 16(h); Guardianship and Administration Act 1990 (WA) s 97.
 St Vincent’s Health Australia, Submission 345.
 Welfare Rights Centre NSW, Submission 184.
 The Coalition’s Policy to Protect the Rights of Older Australians <www.liberal.org.au/coalitions-policy-protect-rights-older-australians>; Senator the Hon George Brandis QC, Attorney-General, ‘Protecting the Rights of Older Australians’ (Media Release, 15 June 2016).
 AnglicareSA, Submission 299.
 Law, Crime and Community Safety Council, Communiqué, 19 May 2017. See also The Coalition’s Policy to Protect the Rights of Older Australians <www.liberal.org.au/coalitions-policy-protect-rights-older-australians>.
 See, eg, Eastern Community Legal Centre, Submission 357; Financial Planning Association of Australia (FPA), Submission 295.