Australian Law Reform Commission releases long awaited report on elder abuse

June 15, 2017 |

The Australian Law Reform Commission has released a comprehensive report on Elder Abuse – A National Legal Response.  For legal practitioners the relevant recommendations  include:

5. Enduring Appointments

Recommendation 5–1              Safeguards against the misuse of an enduring document in state and territory legislation should:

(a)     recognise the ability of the principal to create enduring documents that give full powers, powers that are limited or restricted, and powers that are subject to conditions or circumstances;

(b)     require the appointed decision maker to support and represent the will, preferences and rights of the principal;

(c)     enhance witnessing requirements;

(d)     restrict conflict transactions;

(e)     restrict who may be an attorney;

(f)      set out in simple terms the types of decisions that are outside the power of a person acting under an enduring document; and

(g)     mandate basic requirements for record keeping.

Recommendation 5–2              State and territory civil and administrative tribunals should have:

(a)     jurisdiction in relation to any cause of action, or claim for equitable relief, that is available against a substitute decision maker in the Supreme Court for abuse, or misuse of power, or failure to perform their duties; and

(b)     the power to order any remedy available to the Supreme Court.

Recommendation 5–3              A national online register of enduring documents, and court and tribunal appointments of guardians and financial administrators, should be established after:

(a)     agreement on nationally consistent laws governing:

         (i) enduring powers of attorney (including financial, medical and personal);

         (ii)     enduring guardianship; and

         (iii)    other personally appointed substitute decision makers; and

(b)     the development of a national model enduring document.

6. Family Agreements

Recommendation 6–1              State and territory tribunals should have jurisdiction to resolve family disputes involving residential property under an ‘assets for care’ arrangement.

Recommendation 6–2              The Social Security Act 1991 (Cth) should be amended to require that a ‘granny flat interest’ is expressed in writing for the purposes of calculating entitlement to the Age Pension.

7. Superannuation

Recommendation 7–1              The structure and drafting of the provisions relating to death benefit nominations in ss 58 and 59 of the Superannuation Industry (Supervision) Act 1993 (Cth) and reg 6.17A of the Superannuation Industry (Supervision) Regulations 1994 (Cth) should be reviewed. The review should consider:

(a)     witnessing requirements for making, amending and revoking nominations;

(b)     the authority of a person who holds an enduring power of attorney in relation to the making, alteration and revocation of a nomination;

(c)     whether a procedure for the approval of a nomination on behalf of a member should be introduced; and

(d)     the extent to which other aspects of wills law may be relevant.

Recommendation 7–2              The Superannuation Industry (Supervision) Act 1993 (Cth) should be amended to include ‘replaceable rules’ for self-managed superannuation funds which provide a mechanism for an enduring attorney to become a trustee/director where this was provided for in the enduring document and notwithstanding the terms of the trust deed and constitution of the corporate trustee or the actions of the other trustees/directors.

Recommendation 7–3              The relevant operating standards for self-managed superannuation funds in cl 4.09 of the Superannuation Industry (Supervision) Regulations 1994 (Cth), should be amended to add an additional standard that would require the trustee to consider the suitability of the investment plan where an individual trustee or director of the corporate trustee becomes ‘under a legal disability’.

Recommendation 7–4              Section 104A of the Superannuation Industry (Supervision) Act 1993 (Cth) and the accompanying Australian Taxation Office Trustee Declaration form should be amended to require an individual to notify the Australian Taxation Office when they become a trustee (or director of a company which acts as trustee) of a self-managed superannuation fund as a consequence of being an attorney under an enduring document.

8. Wills

Recommendation 8–1              The Law Council of Australia, together with state and territory law societies, should develop national best practice guidelines for legal practitioners in relation to the preparation and execution of wills and other advance planning documents to ensure they provide thorough coverage of matters such as:

(a)     elder abuse in probate matters;

(b)     common risk factors associated with undue influence;

(c)     the importance of taking detailed instructions from the person alone;

(d)     the need to keep detailed file notes and make inquiries regarding previous wills and advance planning documents; and

(e)     the importance of ensuring that the person has ‘testamentary capacity’—understanding the nature of the document and knowing and approving of its contents, particularly in circumstances where an unrelated person benefits.

9. Banking

Recommendation 9–1              The Code of Banking Practice should provide that banks will take reasonable steps to prevent the financial abuse of vulnerable customers, in accordance with the industry guideline, Protecting Vulnerable Customers from Potential Financial Abuse.

The guideline should set out examples of such reasonable steps, including in relation to:

(a)     training staff to detect and appropriately respond to abuse;

(b)     using software and other means to identify suspicious transactions;

(c)     reporting abuse to the relevant authorities, when appropriate;

(d)     guaranteeing mortgages and other loans; and

(e)     measures to check that ‘Authority to Operate’ forms are not obtained fraudulently and that customers understand the risks of these arrangements.

10. Guardianship and Financial Administration

Recommendation 10–1            Newly-appointed private guardians and private financial administrators should be required to sign an undertaking with respect to their responsibilities and obligations.

Recommendation 10–2            The Australian Guardianship and Administration Council should develop best practice guidelines on how state and territory tribunals can support a person who is the subject of an application for guardianship or financial administration to participate in the determination process as far as possible.


14. Safeguarding Adults at Risk

Recommendation 14–1            Adult safeguarding laws should be enacted in each state and territory. These laws should give adult safeguarding agencies the role of safeguarding and supporting ‘at-risk adults’.

Recommendation 14–2            Adult safeguarding agencies should have a statutory duty to make inquiries where they have reasonable grounds to suspect that a person is an ‘at-risk adult’. The first step of an inquiry should be to contact the at-risk adult.

Recommendation 14–3            Adult safeguarding laws should define ‘at-risk adults’ to mean people aged 18 years and over who:

(a)     have care and support needs;

(b)     are being abused or neglected, or are at risk of abuse or neglect; and

(c)     are unable to protect themselves from abuse or neglect because of their care and support needs.

Recommendation 14–4            Adult safeguarding laws should provide that the consent of an at-risk adult must be secured before safeguarding agencies investigate, or take any other action, in relation to the abuse or neglect of the adult. However, consent should not be required:

(a)     in serious cases of physical abuse, sexual abuse, or neglect; or

(b)     if the safeguarding agency cannot contact the adult, despite extensive efforts to do so; or

(c)     if the adult lacks the legal capacity to give consent, in the circumstances.

Recommendation 14–5            Adult safeguarding laws should provide that, where a safeguarding agency has reasonable grounds to conclude that a person is an at-risk adult, the agency may take the following actions, with the adult’s consent:

(a)     coordinate legal, medical and other services for the adult;

(b)     meet with relevant government agencies and other bodies and professionals to prepare a plan to stop the abuse and support the adult;

(c)     report the abuse to the police;

(d)     apply for a court order in relation to the person thought to be committing the abuse (for example, a violence intervention order); or

(e)     decide to take no further action.

Recommendation 14–6            Adult safeguarding laws should provide adult safeguarding agencies with necessary coercive information-gathering powers, such as the power to require a person to answer questions and produce documents. Agencies should only be able to exercise such powers where they have reasonable grounds to suspect that there is ‘serious abuse’ of an at-risk adult, and only to the extent that it is necessary to safeguard and support the at-risk adult.

Recommendation 14–7            Adult safeguarding laws should provide that any person who, in good faith, reports abuse to an adult safeguarding agency should not, as a consequence of their report, be:

(a)     liable civilly, criminally or under an administrative process;

(b)     found to have departed from standards of professional conduct;

(c)     dismissed or threatened in the course of their employment; or

(d)     discriminated against with respect to employment or membership in a profession or trade union.

Recommendation 14–8            Adult safeguarding agencies should work with relevant professional bodies to develop protocols for when prescribed professionals, such as medical practitioners, should refer the abuse of at-risk adults to adult safeguarding agencies.

The media release provides:

The Australian Law Reform Commission (ALRC) is delighted to be launching its Report, Elder Abuse—A National Legal Response (ALRC Report 131), on World Elder Abuse Awareness Day 2017.

The ALRC was asked to consider Commonwealth laws and legal frameworks and how they might better protect older persons from misuse or abuse, and safeguard their autonomy.

The Report includes 43 recommendations for law reform. The overall effect will be to safeguard older people from abuse and support their choices and wishes through:

  • improved responses to elder abuse in residential aged care;
  • enhanced employment screening of care workers;
  • greater scrutiny regarding the use of restrictive practices in aged care;
  • building trust and confidence in enduring documents as important advanced planning tools;
  • protecting older people when ‘assets for care’ arrangements go wrong;
  • banks and financial institutions protecting vulnerable customers from abuse;
  • better succession planning across the self-managed superannuation sector;
  • adult safeguarding regimes protecting and supporting at-risk adults.

These outcomes should be further pursued through a National Plan to combat elder abuse and new empirical research into the prevalence of elder abuse.

ALRC President Professor Rosalind Croucher AM, Commissioner-in-charge of the inquiry, said, “In developing the recommendations in this Report, we have worked to balance the autonomy of older people with providing appropriate protections, respecting the choices that older persons make, but also safeguarding them from abuse.”

The Report represents the culmination of research and consultation over a 15-month period, during which the ALRC consulted with 117 stakeholders around the country, released two consultation documents, and received more than 450 submissions.

Professor Croucher said:  “The ALRC is indebted to the broad range of individuals and organisations who have contributed to evidence base that informs its recommendations. In particular I thank the many individuals who generously shared with the ALRC personal stories of heartache and frustration, and of families torn apart by elder abuse. It is significant that the Attorney-General, Senator the Hon. George Brandis QC, has chosen to mark the launch of the Report today —with advocates and service providers —at the 2017 World Elder Abuse Awareness Day Forum.”




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