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Elder abuse: Financial abuse

Discrimination Age Discrimination

 

 

Financial Services Council Elder Abuse speech

Good morning.

I would like to start by acknowledging and paying my respects to the traditional owners of the land on which we meet, the Gadigal people, and their elders past and present.

This year, 2015, people aged 85 and over make up around 2% of Australia’s population.[1] The most recent Intergenerational Report projects that that figure will more than double by 2055.[2]

One of the biggest challenges of Australia’s rapidly changing population is the need to better protect the rights of older Australians, and ensure they are free from all kinds of abuse including the all too prevalent financial abuse.
Elder abuse occurs in all societies all around the world. It takes different forms, depending on context, culture, circumstances.

Distressingly it occurs in here Australia, and one of the most pernicious forms it takes here is financial abuse.

This terrible, destructive behaviour attracts too little attention. We need to focus on it much more strongly if we are going to develop more effective protections.

So I congratulate the Financial Services Council for organising today’s symposium on this important and urgent topic.

What do we know about it?

Not enough.

At this point I should indicate where we are with a definition of financial abuse.

The World Health Organisation favours a broad definition, which is any “illegal or improper exploitation or use of funds or resources of the older person”.[3]

This incorporates acts committed both by strangers and people who have a relationship of trust with the victim.

This approach is useful enough for us.

In basic terms elder financial abuse occurs in Australia where family members or trusted friends, or strangers, cheat an older person out of their assets, that is their home or their savings or any valuable items they may possess.

They may so this by forgery, lies, misrepresentation or manipulation.

They may do it by asking for a loan, or a loan guarantee, which they never repay.

In other cases the frail older person is persuaded to transfer their home to a son or daughter, on the understanding that a granny flat and care will be provided.

When the handover happens and the elderly parent is left destitute, little can be done as typically there was no proper legal agreement in place.

Typically, the older person did not seek independent legal or financial advice.

As I noted we have very little data about the national prevalence of all forms of elder abuse including financial abuse.

The World Health Organisation estimates that, globally, around 1 in 10 older people experience elder abuse each month.[4]

Their figures also show that elder financial abuse occurs at a rate of between 1% and 9%.[5]

We can’t be sure how these figures extrapolate to Australia, but from a variety of sources, we know it happens and happens a lot, in all kinds of families and across all cultural groups including indigenous Australians.

Our sources of information include the elder abuse hotlines, run by state governments, and the reports from legal services and community legal centres that offer specialised assistance in cases of financial abuse.

And of course there are the waves of anecdotal accounts that anyone who works in any capacity with frail older people will hear about.

In Australia, as well as elsewhere we lack comprehensive and reliable national data.

Earlier this week I called for action to develop national data on this urgent and terrible problem. I am pleased to report that I had widespread supportive responses to this call, including from various media outlets.

People know it happens, that it is terrible and that as a society we need to do more to prevent it.

Elder abuse is significantly underreported, particularly in developing countries. WHO projects that only around 1 in 24 cases of elder abuse is actually reported to authorities.[6]So we can assume underreporting here in Australia too.

But we do have some data: in the 2013-14 financial year, financial abuse was the most prevalent issue raised in calls to Seniors Rights Victoria’s helpline, making up 29% of all calls.[7]

Providers of financial services are sometimes in the best position to recognise, and prevent, elder financial abuse as it is occurring.

In 2007, the Victorian Civil and Administrative Tribunal heard a guardianship case which dealt with this issue.[8] A woman, aged in her 70’s and who had dementia, was collected from her nursing home the day before her late husband’s funeral by a man and woman claiming to be her adoptive children.

They took the woman to her local bank branch, where she asked to withdraw all her savings. The bank teller, suspecting that the woman was confused, dissuaded her from doing this and alerted the Tribunal of her concerns. There was also evidence that the man and woman may attempt to move the woman from her nursing home to another part of the state. In making his decision, the Deputy President commended the bank teller for her “swift action in notifying the Tribunal”[9] about the risks she perceived, and agreed that there was a need to appoint a new guardian.

Cases like this one highlight the important role of banks and financial service providers.

We can also look back at many of the court cases highlighting issues of undue influence and unconscionable conduct in financial transactions and identify elements of elder financial abuse there.

In Amadio v Commercial Bank of Australia, the court heard the case of a couple – Mr and Mrs Amadio – aged in their 70’s, who had migrated to Australia from Italy and spoke very little English. Their son, Vicenzo, had a number of debts with the Commercial Bank of Australia and was advised that they would be able to give him an increased overdraft if his parents could provide their home as security. He assured his parents that the security was limited to 6 months and $50,000.
In fact, this was not the case – it was an unlimited guarantee – but when the bank manager visited the Amadio’s at their home to obtain their signatures, he failed to provide any explanation of the document.

The court set aside the guarantee on the grounds of unconscionable conduct.

Although this case was decided over 20 years ago, the Legal Practitioners’ Liability Committee reported a rise in these kinds of claims involving a family member providing security on their property.[10]

Financially motivated elder abuse can have even worse consequences. In 2008, an 83 year old woman who lived alone in Adelaide was murdered for financial gain by a woman who had attempted to befriend her and become her carer.[11]

We know that women are the most common victims of elder abuse.

Because they tend to have lower level incomes, savings, and superannuation, women are particularly damaged by financial abuse.

Where women survive their partners, which is typical, they can experience greater isolation and greater dependency, both of which increase the risk of abuse.

Another important group to consider are Indigenous peoples. I refer to the work of my colleague Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda in raising awareness about ‘lateral violence’ in indigenous communities.

Lateral violence refers to conflict that occurs within and among Indigenous communities. It can include bullying, shaming, social exclusion, family feuding, organisational conflict and physical violence.

Indigenous elders can be targeted within their communities.

Older people living in in regional and rural communities must also be considered – they have particular vulnerabilities due to their geographical isolation. This could mean inability to escape abusive situations, or the lack of resources, or lack of confidentiality, as well as increased risks from gun ownership and overall, poor access to information and emergency services.

Other important minority groups that require more attention and support are CALD communities, LGBTI people, and people with disability. Older members of these groups may have additional vulnerabilities arising from continuing discrimination against their groups.

So, what is being done?

It is important to acknowledge that in recent years we have seen some progress.

State and territory governments have developed their own responses to the issue, that is, training and education, funding of existing services and putting in place specific policies and protocols.

All states and territories have their own elder abuse hotlines, which deal with thousands of calls and complaints every year.

This year, partly in response to growing concerns about the prevalence of elder financial abuse by family members, the Victorian Parliament passed an amendment to the Powers of Attorney Act. The Act now allows a person to appoint a “supportive attorney” who can assist them in making certain, specified types of decisions. A supportive attorney does not make decisions on behalf of the person they are supporting and, importantly, cannot enter into significant financial transactions on their behalf.

The NSW Parliament has also announced an inquiry into elder abuse, which will examine its prevalence and make recommendations about preventing abuse and safeguarding older people.

The financial regulator ASIC, within its Indigenous Outreach Program is doing important work to raise awareness of and prevent elder abuse within Aboriginal and Torres Strait Islander communities.

The ACCC publishes online helpful and practical consumer advice on how to avoid scams.

Older people are the most vulnerable age group to scams, include dating site scams.

While these programs are diverse and high quality, they do not deal completely with the problem.

The widespread and complex nature of elder abuse requires a coordinated, national response.

As we can see today, the involvement of all stakeholders is crucial – you as financial service providers have a crucial part to play in this specific area of elder financial abuse and should be included in these discussions.

The purpose of such a national approach would be to streamline current protections and fill in any gaps, particularly in relation to special groups and high risk areas such as financial transactions

It would involve a consideration of the need for and potential value of possible new laws that would create specific offences of elder abuse.

I hope a national strategy would include communication about the universality of human rights and help combat negative social stereotypes that impact on the self-esteem and independence of older people.

I am encouraged by the Financial Services Council’s decision to turn their attention to this important and urgent issue.

Combating elder abuse is a huge challenge, and elder financial abuse is an important element of this.

Older Australians have the right to live contented and safe lives, protected from all forms of abuse.

As the South Australian Public Advocate stated in 2011: “The abuse and neglect of older people is everybody’s business”.[12] After all, if we are lucky, we will all be old one day.

 


[1] The Treasury, 2015 Intergenerational Report (2015), p12. At http://www.treasury.gov.au/PublicationsAndMedia/Publications/2015/2015-Intergenerational-Report (viewed 30 September 2015).

[2] The Treasury, 2015 Intergenerational Report (2015), p12. At http://www.treasury.gov.au/PublicationsAndMedia/Publications/2015/2015-Intergenerational-Report (viewed 30 September 2015).

[3] World Health Organisation, World report on violence and health (2002). At http://whqlibdoc.who.int/publications/2002/9241545615_eng.pdf?ua=1 (viewed 15 October 2015).

[4] World Health Organisation, Elder Abuse Fact sheet no 357, [website] (December 2014). At http://www.who.int/mediacentre/factsheets/fs357/en/ (viewed 15 October 2015).

[5] World Health Organisation, Elder Abuse Fact sheet no 357, [website] (December 2014). At http://www.who.int/mediacentre/factsheets/fs357/en/ (viewed 15 October 2015).

[6] World Health Organisation, Elder Abuse Fact sheet no 357, [website] (December 2014). At http://www.who.int/mediacentre/factsheets/fs357/en/ (viewed 15 October 2015).

[7] Seniors Rights Victoria, Annual Report 2013-14. At https://www.google.com.au/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=seniors%20rights%20victoria%20annual%20report (viewed 15 October 2015).

[8] SMcD (Guardianship) [2007] VCAT 666

[9] SMcD (Guardianship) [2007] VCAT 666

[10] Legal Practitioners’ Liability Committee 2013/14 Annual Report. At http://lplc.com.au/annual-report-201314/ (viewed 15 October 2015).

[11] R v Gavare [2012] SASCFC 52 (4 May 2012); R v Gavare [2011[ SASC 142 (31 August 2011)

[12] South Australian Office of the Public Advocate and the University of South Australia Human Rights and Security Research and Innovation Cluster, Closing the Gaps: Enhancing South Australia’s Response to the Abuse of Vulnerable Older People (Report for the Office for the Ageing and Disability Services, October 2011) < http://www.sa.gov.au/upload/franchise/Seniors/Office%20for%20the%20 Ageing%20-%20Publications/Publications/Protection%20of%20Vulnerable%20Adults%20%E2%80 %93%20Closing%20the%20Gaps.pdf >29–30 (‘Closing the Gaps’).

The Hon Susan Ryan AO, Age Discrimination Commissioner

See Also

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