Elder Abuse is an issue in Australia, and it is therefore important to know who may be aware of abuse, what forms of abuse may be of concern, community-based organisations that concern themselves with elder abuse, and the roles legal practitioners have in supporting victims. Mostly the victims are elders who are vulnerable and have a diminished ability to advocate and defend themselves from others seeking advantage[1] of them by way of financial abuse, psychological abuse, neglect, physical abuse, and sexual abuse. Elder Abuse can also occur hidden within the close personal relationships of the elder victim.
When does Elder Abuse take place?
The identification of Elder Abuse is not a straightforward matter. There is no current legislation that addresses Elder Abuse, and oftentimes, the victim elder may not recognise it as Elder Abuse.[2]
These are some of the reasons offered for the lack of available information about Elder Abuse which leaves it unreported, including:
- The victim elder not recognising their situation as abusive;[3]
- A sense of shame or embarrassment;[4]
- The sense of responsibility for the actions of the perpetrator;[5]
- Not knowing that access to assistance is available;[6] and
- A dependence upon the perpetrator may develop leading to fear of retaliation or neglect/abandonment.[7]
Studying the relationship between the victim and their abuser is important as part of the forensic exercise which a lawyer might take considering what legal remedies are appropriate. A careful review of the signs or precursor of Elder Abuse includes:
- Whether social isolation is/has been present?
- Whether is conflict within the family structure?
- Whether there is conflict over access to the victim?
- Is carer stress present?[8]
- Does the elder experience cognitive impairment?[9]
- Is there inheritance impatience present?
Types of Elder Abuse
Under the categories classified as Elder Abuse, each can be assessed through a range of possible legal remedies and background history:[10]
| Financial Abuse | Psychological Abuse | Neglect | Physical Abuse | Sexual Abuse |
| Undue influenceUnconscionable conductBreach of contractBreach of Fiduciary duty | Undue influence – will makingLoans, guaranteesAccommodation arrangements | Withholding foodHydrationLack of provision of NecessariesLack of care and medical attention when duty or obligation is present | AssaultBatteryUnlawful restraint | Unwanted sexual actsSexual contactRapeLanguage or Exploitative behaviours |
Who to contract
Before seeking legal advice there are some alternative bodies to contact:[11]
| Aged Care Assessment Team | Contact the Aged Care Assessment Team to visit the person’s home, meeting the relatives to detect signs of elder abuse. Suspected cases are reported to the police, local council social worker community organisation, or to a relative. |
| Police | If a crime is reported, the police are obliged to investigate, and domestic violence orders may be sought in cases of abuse harassment, intimidation, and threats of violence. |
| Aged Care Complaints Commissioner | The commissioner may arrange conciliation and mediation, they may issue directions to providers who are in breach. However, directions are not legally binding. |
| Aged Care Advocacy Agencies | These organisations can provide telephone advice, limited case work and referral. |
| Community Welfare Agencies | Not-for-profit organisations that only have the authority to refer to other organisations, police or the legal profession |
| Aged Care Home Staff & Management | Staff may become aware of family and friends prevailing upon a resident to make a will, sign over property or insist upon a power of attorney. In other circumstances, reports may be made against a staff member who is accused of abuse. |
| Family and Friends | Family and friends may assume the role of abuser, responder, or reporter. They may approach some of the other responders or reporters. |
| Informal Carers & Elder Abuse Hotline | Carers are potentially both reporters and abusers established under NSW policy on prevention of elder abuse. |
The Role of Legal Practitioners
When legal practitioners are sought in matters related to elder abuse, the range of available legal remedies may include:
- Constructive trust;[12]
- Equitable charge;[13]
- Unconscionable conduct;[14]
- Undue influence;[15] and
- Application to NCAT for Guardianship and Financial Management Orders
If a matter is suspected to be Elder Abuse and seeking legal proceedings cannot be avoided, please reach out to Elderlaw Legal Services. The solicitors with Elderlaw Legal Services are skilled in matters of elder abuse and are ready to assist with the legal problems associated with it.
Elderlaw Legal Services
28 November 2022
[1] 16.10.2017 Rodney Lewis, Draft Paper – Elder Abuse – UNSW Seminar.
[2] The Exception in the recent amendment to the A.C.T. Crimes Act dealing with abuse of vulnerable persons.
[3] Emily Darkin and Sue Pearlmutter, ‘Older women’s perceptions of elder maltreatment and ethical dilemmas in adult protective services: A cross-cultural exploratory study.’ (2009) 21(1) Journal of Elder Abuse & Neglect 15.
[4] Mike Clare et al, ‘Conceptualising elder abuse: Does this label fit?’ (2014) 8(1) Communities, Children and Families Australia 37.
[5] Joan Harbison and Marina Morrow, ‘Re-Examining the social construction of ‘elder abuse and neglect’: A Canadian perspective’ (1998) 18(6) Ageing and Society 691; Ailee Moon and Donna Benton, ‘Tolerance of Elder Abuse and Attitudes Towards Third-Party Intervention Among African American, Korean American, and White Elderly’ (2000) 8(3)-(4) Journal of Multicultural Social Work 283.
[6] DeLiema, Navarro et al. 2015; Neave, Faulkner et al. 2016.
[7] Joan Harbison and Marina Morrow (n 5); Mike Clare et al (n 4); Shelly L Jackson and Thomas L Hafemeister, ‘How Case Characteristics Differ across Four Types of Elder Maltreatment: Implications for Tailoring Interventions to Increase Victim Safety’ (2014) 33(8) Journal of Applied Gerontology 982; Carolyn E Ziminski Pickering and Veronica F Rempusheski, ‘Examining barriers to self-reporting of elder physical abuse in community-dwelling older adults.’ (2014) 35 Geriatric Nursing 120.
[8] https://www.9news.com.au/national/2018/04/21/13/36/aged-care-worker-shocking-conditions-stress-inside-homes.
[9] Australian Institute of Family Studies. Elder Abuse, 4.4 Disabilities Research Report No. 35 – February 2016.
[10] 28.05.2018 Rodney Lewis, Television Education Network Seminar – Identifying and responding to Elder Abuse.
[11] Rodney Lewis, submission to ALRC reference on Elder Abuse, 2016.
[12] Musgrave v Musgrave [2001] NSWSC 134.
[13] Morris v Morris [1982] 1 NSWLR 61.
[14] Urane v Whipper [2001] NSWSC 796 (12 Sept 2001).
[15] Michaletos v Stivactas (SC (NSW), Waddell CJ, 10 July 1991, unreported, BC 9101807).
