Responding to the financial abuse of older people - Loddon ...

If, upon hearing the evidence, the Guardianship List is satisfied that the Attorney
or Administrator is not acting in the Donor’s or represented person’s best interests,
it can revoke the EPAF or Administration Order. VCAT also operates a 24-hour
emergency service and can appoint an Administrator to make financial and legal
decisions if the EPAF or Administration Order is cancelled.
5.8 The role of banks in reporting
elder financial abuse
(a) The two key problems in ensuring the financial safety of the elderly are, firstly,
detecting the abuse, and secondly, finding someone that is prepared to take action
by bringing the abuse to the attention of the OPA or VCAT. Julian Gardner, the former
Victorian Public Advocate, states that ‘the fundamental problem with financial
abuse is lack of detection’. 37 He quotes a study by the American Bar Association
that noted ‘banks have the potential to be the “first line” of defence against financial
abuse, by identifying the abuse at its outset, before the elder’s assets have been
dissipated’. 38 The key role for banks is the observation of behaviours that point to
the possibility of financial abuse, including:
(i)
(ii)
an unusual volume of banking activity;
banking activity that is inconsistent with the client’s usual practices;
(iii) sudden increases in debt when the older person appears to be unaware
of the transactions;
(iv) withdrawal of funds by someone else handling the person’s affairs
where there is no perceivable benefit to the account holder; or
(v)
implausible reasons for banking activity being given by either the older person
or by someone accompanying them. 39
5.9 Confidentiality and immunity
from liability for banks
(a) A key concern of banks and their staff in accessing the jurisdiction and services
of the OPA in the case of suspected financial abuse is the confidentiality of
transactions between the bank and the client.40 There is a reticence amongst
banks to report suspicious transactions to VCAT or the OPA for fear of violating
obligations of privacy. 41 Further, if allegations made in reports by the bank are
found to be false, the possibility of a legal suit being brought by the accused arises.
(b) The non-binding Australian Bankers’ Association Code of Banking Practice (‘Code’),
to which all major banks in Australia are signatories, 42 recognises ‘the needs
of elderly customers and customers with a disability to have access to transaction
services’ and commits to taking ‘reasonable measures to enhance their access to
those services’. 43 In terms of reporting obligations, however, clause 22 of the Code
refers to banks’ duties under the Privacy Act 1988 (Cth) (‘Privacy Act’) and to their
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