AGEING & THE LAW Reforms mut be made to address elder abuse TASS LIVERIS, PRESIDENT, LAW COUNCIL OF AUSTRALIA According to the National Elder Abuse Prevalence Study, published by the Australian Institute of Family Studies in December, 2021, almost one in six older Australians reported experiencing some form of elder abuse in the past 12 months. What make elder abuse most devastating is that the perpetrator is usually someone the older person trusts and relies on, such as a family member, friend or carer and almost two-thirds of older people don’t seek help when they are abused. Incidents of abuse may be physical, social, financial, psychological or sexual and can include mistreatment and neglect. Elder abuse in any form is unacceptable. Financial abuse is the most prevalent type of elder abuse and the Law Council of Australia has focused resources on addressing it. Legal practitioners are in a key position to recognise and prevent the abuse of older persons, including financial abuse. In 2020, the Law Council released a Best Practice Guide for Legal Practitioners in Relation to Elder Abuse. The Guide is intended to assist legal practitioners identify and address potential issues regarding elder financial abuse in the preparation and execution of wills and other advance planning documents. The Guide was developed by the Law Council’s specialist National Elder Law and Succession Law Committee in consultation with Constituent Bodies in response to a recommendation from the Australian Law Reform Commission’s report into elder abuse. The Guide includes topics such as setting up meetings effectively, taking instructions, ensuring appropriate support, communicating effectively with the client, checking for decision making capacity, being alert to the warning signs of potential abuse, and keeping records. While much of the lawmaking in the area is made at the state and territory level, the Guide provides overarching principles to complement more detailed guidance provided by the Law Council’s Constituent Bodies. The Law Council has also advocated for the creation of nationally consistent laws relating to the use of enduring power of attorney instruments (EPOAs). EPOA arrangements are intended to ensure a person’s interests are protected when they lose capacity to make decisions for themselves. However, in the absence of adequate legal safeguards, financial elder abuse by appointed decision-makers may be facilitated by such arrangements. Therefore, the Law Council welcomed the decision by the Meeting of Attorneys-General in late 2021 to develop recommendations and a timetable for developing more nationally consistent enduring power of laws, to effectively reduce financial elder abuse, for consideration by Attorneys-General by the end of <strong>2022</strong>. The Law Council is seeking changes to ensure a person making an enduring document makes an informed decision about its content and the identity of the appointed decision-maker, and that the decision-maker understands and makes a commitment to comply with their duties and obligations. With Australia’s population ageing and one in every six Australians already over the age of 65, stamping out elder abuse must be a priority. However, the Law Council remains concerned that funding of specialist legal assistance and aged care advocacy services is inadequate in light of the acute and widespread nature of elder abuse within the community and has called for substantial additional funds for legal assistance services to provide specialist advice, representation and education for older persons. These services play a fundamental, often unrecognised role in ensuring transparency and scrutiny of aged care. The underfunding of legal assistance services means that, for example, in the 2020-21 financial year, just over one per cent of approved legal aid grants were provided to assist persons aged 65 years and over, despite this group constituting 16 per cent of the population. Funding for civil legal assistance is further limited with less than a quarter of the approved grants for this group being granted to civil law matters. Given that effective implementation of the National Plan to Respond to the Abuse of Older Australians 2019-2023 requires a coordinated approach across all service providers, it is important appropriate and sustained funding is provided to ensure government agencies, tribunals and publicly funded services are properly resourced. Outstanding issues identified in the Australian Law Reform Commission and Royal Commission into Aged Care Quality and Safety (Royal Commission) reports and the National Plan to Respond must also be addressed. This includes developing a new Aged Care Act which is consistent with the recommendations of the Royal Commission report by 1 July, 2023; and ensuring that those in residential aged care facilities have legal redress to protect them from abuse, whether perpetrated by care providers (including in the use of restrictive practices) or fellow residents. B 6 THE BULLETIN <strong>September</strong> <strong>2022</strong>
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