A national model to combat financial abuse needed: experts

The nation’s top legal and ageing experts are calling on the commonwealth to enact nationally consistent laws to prevent elder financial abuse.

President of the Law Council of Australia Dr Jacoba Bransch QC, convened a national roundtable in July to draft the core principles for new federal legislation. 

Key bodies including the Age Discrimination Commissioner, the Council on the Ageing and the Australian Law Reform Commission all agreed that varying state laws created confusion and led to the exploitation of older people. 

“We need consistency across the states and territories with their legislation that creates enduring powers of attorney,” Dr Bransch told Aged Care Insite.

“Every state and every territory think their legislation is terrific and fit and appropriate, but we’ve got to step away from that and actually look at the greater good of protecting the vulnerable.”

In Australia, documents that create the enduring power of attorney (EPOA), which gives one the power to make financial and legal decisions on behalf of another, differ from state to state. 

According to Dr Bransch this is a significant barrier for older Australians who may wish to update, amend or revoke their EPOA.

“People travel, and just because you're elderly doesn't mean you're going to stay in Brisbane or Sydney all of your life, you might go and live with family in other parts of our country,” Bransch said.

“Say if I revoked or executed an (EPOA) document here in Queensland, then it wouldn't be recognised in South Australia.

“Once we’ve got consistency, then we need a national register so they are truly transportable.”

Dr Bransch said implementing a national register for EPOAs, similar to the domestic and family violence scheme implemented in 2017, would improve statewide protection for victims and promote accountability.

In late June, the Attorneys-General closed public consultations on a new register and is now considering the issue.

Another significant issue, according to Dr Bransch, concerns the improper monitoring of EPOAs state to state, which can see a person overseeing another's finances reviewed only every few years. 

“There should be regular reviews, every guardianship tribunal, however named around the country, should be having reviews,” said Dr Bransch.

“In Queensland for example, it could be a two or five year review.”

Different definitions around elder abuse, what constitutes as having capacity to make decisions, and requirements for attorneys or guardians also vary in each jurisdiction. 

This creates confusion and a lack of awareness, often leading to family members not understanding that they are committing acts of financial abuse, said Dr Bransch.

“A lot of them simply don’t understand what it is they are meant to do and what they’re not meant to do, so there’s a real education problem there.

“There’s basic principles that people need to understand. You can’t take mum or dad or your uncle's money and put it in your bank account, even if you're using it to go shopping for them.

“A lot of it’s a lack of understanding, but some of it is frankly malevolent.” 

A complex issue

Financial abuse is the most common form of elder abuse in Australia. 

Australia’s first laws to criminalise financial elder abuse recently came into effect in the ACT, with convicted offenders facing up to three years in jail. 

The Queensland government also launched a statewide campaign in July to raise awareness around the issue. 

Since most cases go unreported, there is little national data to paint a clear picture of how often it occurs.

It is estimated by the Australian Banking Association that around 1 in 10 Australians will experience some form of elder financial abuse. Dr Bransch, who practises in family law, believes these figures may be greater.

“It’s a hidden thing and that’s part of the problem.

“It’s not unusual for the older person who is being financially abused to be embarrassed, and not wanting to go to the police or not wanting to go to their guardianship tribunal.

“There’s also an element of, ‘We’ve got it, keep it within the family,’.

“What we know of I think is just the tip of the iceberg, which is a real problem and part of the national awareness that we’re trying to create with this issue.”

Family conflict, higher dependence on others and isolation are leading risk factors behind elder financial abuse, according to the latest research. 

Increased seclusion and higher rates of domestic violence triggered by the COVID-19 pandemic has also led experts to express concerns about older people's safety.  

“Adult children who suddenly have millions in super which they’ve never earnt, and you look at the bank statements and it’s mum and dad’s super thats suddenly become the adult child's,” said Dr Bransch.

“Or the houses that get signed over to the person who should be making decisions that benefit the adult.”

“It’s appalling."

Currently, the Law Council of Australia is working in consultation with the roundtable to ramp up pressure on the federal government.

“We’re going to turn that into a model and then it’s advocacy with state and territory attorneys-general, and then hopefully the commonwealth will lead in this space. 

“Attorney-General [Michaelia] Cash has indicated that she understands the difficulties. She can lead in this space to bring the attorneys together so the state and territory legislations can be amended for some uniformity.”

Dr Bransch says that she sees benefits, not barriers, to pushing these reforms through in the future.

“If people can come together, if the attorneys-general when they meet, and they meet a couple of times each year, if they can put it on their agenda and come together as one then it will be of great benefit to our elderly in Australia.”

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