LSB September 2022 LR

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AGEING & THE LAW making orders with in-built flexibility by way of imposing conditions in relation to general terms. It is often the case that the relationships in which elder abuse arises are multifaceted. For example, an individual may need to be restrained from interfering with an older person’s finances, whilst being permitted to remain in contact with the older person to provide them with company, care and/ or assistance; or being permitted to assist the older person with the weekly grocery shop. Conceivably, the flexibility and discretion afforded by the IO Act could allow for an IO to be tailored with specific terms and conditions to accommodate such circumstances. The clear objective would be to preserve and encourage the positive aspects of such a relationship with the older person, whilst ensuring necessary intervention is made to safeguard the older person. The use of IOs in elder abuse cases may also present as an avenue for court ordered programs of rehabilitation and/ or community education in the area of elder abuse, should such referral pathways be established between the courts and relevant support service providers. 55 However, given the subtle nature of psychological abuse it is unlikely that the police would become involved in these matters in the way that they would by responding to an ‘incident’ of physical abuse. Any application for an IO in such cases is therefore likely to be a private application to the court (that is, not a police order or an application to the court by police 56 ). This means that any application for an IO would need to be made to the court by the older person themselves or a ‘suitable representative of such a person given the permission to apply to the court’. 57 A potential difficulty in the context of older persons is the implicit requirement that any application made by a suitable representative is made with the consent of the older person. 58 Issues of consent and capacity are not only complex issues when dealing with vulnerable adults, 59 but they are also matters that may be impacted by the very psychological abuse which is sought to be addressed by intervention. However, a query is whether older person support/advocacy services may potentially play a role in assisting to bring private applications on behalf of older persons, whether as representatives themselves or assisting others to represent the interests of the older person. The role of older person support/advocacy services might also extend to referring matters to police in appropriate cases for police to make applications to the court in the absence of an older person’s consent or capacity. 60 Closing remarks There is a need not to ‘abuse’ 61 the broad jurisdiction of the IO Act, nor unnecessarily add to the already lengthy lists of the Magistrates Court. However, the prevalence and nature of abuse which falls within the ambit of the IO Act should not deter the pursuit of intervention where it is appropriate. There seems little, if any, material in the public domain which addresses the use of IOs in the context of elder abuse in South Australia. However, the role of IOs to address elder abuse has been discussed elsewhere. The consensus is that it is ‘not common’, 62 subject to ‘limitations’, 63 is of varied effectiveness 64 and there is a general reluctance to use IOs in this context for a variety of reasons. 65 Although an IO may not be a solution in the majority of cases of elder abuse, their use and utility should not be discounted. They may offer an accessible means of intervention when other existing remedies are not available or not suitable. They may provide for a flexible and casespecific intervention in cases where there is a complex and multifaceted relationship not only between the relevant parties, but also between the actual and potential psychological and financial abuse at play. The application for an IO may be within the expertise and established role of the police. However, the ability of other agencies to become involved and seek or support such orders should not be overlooked. The option of an IO to address at least some forms of elder abuse, namely psychological and financial abuse, is worthy of closer consideration by lawyers, police and relevant agencies. This article arises from the context of the present independent review by the South Australian Law Reform Institute (SALRI) of the operation of the Ageing and Adult Safeguarding Act 1995 (SA). Any views of the authors are expressed in a purely personal capacity. The authors acknowledge the erudite input of Dr Mark ‘Matt’ Gianacaspro, Holly Nicholls, Divya Narayan, Associate Professor Beth Nosworthy, Olga Pandos, Rachel Portelli and Dr Sylvia Villios. Jemma Holt is currently working as a Researcher for SALRI. She also works as a Researcher for the Tasmania Law Reform Institute and in the role of Clinic Supervisor for two of the free legal advice clinics based at the University of Adelaide Law School: the Adelaide Legal Outreach Service (ALOS) and the Equal Opportunity Legal Advice Service (EOLAS). She has been involved in teaching undergraduate Criminal Law and Evidence and Advocacy at the University of Adelaide since 2020. She has worked as a Prosecutor with the Office for the Director of Public Prosecutions since 2013. She has previously worked for the Crown Solicitor’s Office (2018), the Independent Commissioner Against Corruption (2020-1), and the Office for Public Integrity (2022). She has also worked as a Prosecutor with Tasmania Police (2019) and the Office for the Director of Public Prosecutions in Hobart (2019-20). Dr David Plater is an Associate Professor at the Adelaide University Law School and is the Deputy Director of SALRI. He is an Adjunct Senior Lecturer at the University of Tasmania Law School. SALRI is an independent law reform body based at the Adelaide University Law School. B 12 THE BULLETIN September 2022
AGEING & THE LAW Endnotes 1 There are conflicting figures as to the prevalence of elder abuse, but the most recent study found 15% of older persons in Australia experienced some form of abuse. See Lixia Qu et al, Australian Institute of Family Studies, National Elder Abuse Prevalence Study (Research Report, December 2021) 30–35. The abuse of persons with disability has also gained much concern. See Disability Royal Commission (Interim Report, October 2020). 2 See generally Wendy Lacey, ‘Neglectful to the Point of Cruelty? Elder Abuse and the Rights of Older Persons in Australia’ (2014) 36(1) Sydney Law Review 99; Australian Law Reform Commission, Elder Abuse: A National Legal Response (Report No 131, May 2017); Select Committee into Elder Abuse, Legislative Council of Western Australia, ‘“I Never Thought It Would Happen To Me”: When Trust is Broken’ (Final Report, September 2018); 44 [2.42]–[2.60]. 3 See Wendy Lacey et al, University of South Australia, Prevalence of Elder Abuse in South Australia: Current Data Collection Practices of Agencies (Report, February 2017); Parliament of South Australia, Joint Committee on Matters Relating to Elder Abuse, ‘Final Report of the Joint Committee on Matters Relating to Elder Abuse’ (Report, October 2017). 4 Lixia Qu et al, Australian Institute of Family Studies, National Elder Abuse Prevalence Study (Research Report, December 2021) 1. 5 See also Dale Bagshaw et al. ‘Financial Abuse of Older People by Family Members: Views and Experiences of Older Australians and their Family Members’ (2013) 66(1) Australian Social Work 86. 6 Jo Wainer, Peter Darzins and Kei Owada, Prevalence of Financial Elder Abuse in Victoria: Protecting Elders’ Assets Study (Report, Monash University, 10 May 2010) 15; Kelly Purser, Tina Cockburn and Elizabeth Ulrick, ‘Examining Access to Formal Mechanisms for Vulnerable Older People in the Context of Enduring Powers of Attorney’ [2019] 12 Elder Law Review 1–32, 21. A recent study found 90% of elder abuse was carried out by a family member, most often an adult son or daughter. See Melanie Joosten et al, Senior Rights Victoria, Seven Year of Elder Abuse Data in Victoria (Report, August 2020). 7 Adam Graycar and Marianne James, ‘Crime and Older Australians: Understanding and Responding to Crime and Older People’ (Conference Paper, Family Futures: Issues in Research and Policy, Australian Institute of Family Studies Conference, Sydney, 24–26 July 2000), 7. See also Georgia Lowndes et al, Financial Abuse of Elders: A Review of the Evidence (Report, Monash University, June 2009) 5, 12. 8 John Chesterman, ‘Taking Control: Putting Auctioneers & Valuers MGS (SA) is South Australia’s most experienced industrial auctioneers and valuers with over 40 years in the industry. Our expertise is second to none. Servicing Corporate Australia, Insolvency Practitioners, Legal Professionals, Accountants and Government. Jack Ruby’s Bar Providing an unparalleled solution Basement, 89 for King asset William Street, management, Adelaide SA valuations or disposal. Auctioneers & Valuers of Plant & Equipment for: • Business Restructuring • Succession Planning • Acquisition & Disposal • Insolvency & Legal Disputes www.mgs.net.au Mason Gray Strange Auctions (SA) Pty Ltd | P 8444 9111 | 370-378 Torrens Road, Kilkenny, SA 5009 September 2022 THE BULLETIN 13
Page 1 and 2: THE BULLETIN THE LAW SOCIETY OF SA
Page 3 and 4: This issue of The Law Society of So
Page 5 and 6: PRESIDENT’S MESSAGE The law is se
Page 7 and 8: NEW SUIT ARRIVALS FROM SAVILLE ROW
Page 9 and 10: AGEING & THE LAW family or assets o
Page 11: AGEING & THE LAW partner abuse repr
Page 15 and 16: DISABILITY Report that police may b
Page 17 and 18: AGEING & THE LAW The most substanti
Page 19 and 20: EVENTS Nyland lunch celebrates powe
Page 21 and 22: RISK WATCH 3. If it involves trust
Page 23 and 24: INTERVIEW RH: Over the years you sp
Page 25 and 26: TAX FILES money was irrelevant - ne
Page 27 and 28: FEATURE STAYS OF CIVIL PROCEEDINGS
Page 29 and 30: CIVIL LITIGATION 2. The burden is u
Page 31 and 32: WELLBEING & RESILIENCE Ageing Well
Page 33 and 34: FAMILY LAW CASE NOTES PROPERTY - IN
Page 35 and 36: CLASSIFIEDS Advertise in The Bullet

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