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Cripps, David; Biven, Jenny; Northey, Jane; Rigger, Phillip --- "Abuse of older people: issues for lawyers" [2002] ElderLawRw 8; (2002) 1 Elder Law Review 14


Abuse of older people: issues for lawyers

David Cripps, Jenny Biven, Jane Northey and Phillip Rigger

The Aged Rights Advocacy Service http:// www.sa.agedrights.asn.au/ is an agency that offers rights focused advocacy assistance to older people where they are living in Commonwealth subsidized aged care facilities, receiving community based services or experiencing (or at risk of experiencing) abuse[1].

The advocacy provided is social rather than legal in nature, and is focused towards supporting older people to uphold their rights, for example to make informed choices. Such an approach is aimed at maximizing the control an older person has over a given situation.

Many of the rights that the Aged Rights Advocacy Service supports older people to uphold are enshrined in legislation, for example The Aged Care Act, 1997 http://www.austlii.edu.au/cgi-bin/disp.pl/au/legis/cth/num%5fact/aca199757/?query=title+%28+%22aged+care%22+%29 (e.g. the right of an older person resident in a hostel or nursing home to see an independent advocate). Equally, the Aged Rights Advocacy Service subscribes to the United Nations Principles for Older Person’s http://www.un.org/documents/ga/res/46/a46r091.htm protocol (passed by the General Assembly in 1991, and mandated on all member governments). The protocol promotes older people’s rights to independence, participation, self-fulfillment and dignity (amongst others).[2]

As a result of supporting older people to make informed choices about what is legally possible far reaching legal action has been undertaken. This has included, for example, a 91-year-old woman pursuing a relative who abused a Power of Attorney through the civil courts, and subsequently through the bankruptcy process of the Federal Magistrates court. Similarly, this approach has been successful in supporting an older couple (separately effected by Parkinson’s Disease and Alzheimer’s Disease), that were subject to financial abuse, physical abuse and neglect, to get back the property that they had legally gifted to their children (in exchange for their promises to look after their parents for the rest of their lives). These examples will be further discussed in the case studies presented.

This paper has a number of elements:

It seeks to describe abuse of older people;
To discuss legal issues in relation to abuse;
To illustrate the issues with a case study; and

To make suggestions as to how lawyers can uphold the rights of older people, particularly where they suspect abuse.

The goal of this paper is to describe the very important role that lawyers can play in supporting older people to uphold their rights, and addressing issues of abuse.

Abuse of older people

Abuse of older people, or elder abuse as it is commonly known, has emerged as an issue in the public conscience of Australia over the last ten to fifteen years. In many respects, it seems to be the last item in an unholy trinity similarly occupied by child abuse and domestic violence. Elder abuse is a discrete phenomenon, and is defined as:

‘any act that occurs in a relationship where there is an implication of trust, which results in harm to an older person. Abuse can be financial, psychological, physical, social, neglect or sexual [3] .’

A number of aspects of this definition need to be drawn out. Firstly, the closeness of the relationship. Whereas child abuse occurs from parent to child, and domestic violence within partner type relationships, elder abuse assumes a broader range of potentially abusive relationships. Elder abuse can occur in any relationship that is close, that is characterised by mutual expectations of trust, and where that trust has been taken advantage of in order to abuse an older person. From this it follows that it incorporates a broader range of potentially abusive relationships than child abuse or domestic violence, including spouse or partner, but extending as far as child, some other relative (e.g. niece or grandchild) or even friend. It excludes specifically professional relationships, which presume service in exchange for payment or assessment.

2002_800.png

Table 1 shows the types of relationship identified as abusive by consumers of Aged Rights Advocacy Service advocacy support over 2000 - 2001[4] . This pattern, where adult child is the most common relationship of abuser, is consistent with the trend observed by this agency over a number of years. Note that almost five hundred older people (or their representatives) contact The Aged Rights Advocacy Service Abuse Prevention Program each year.

There are many points of congruence between the types of abuse listed in this definition, and the law. Financial abuse is the misuse of an older person’s assets and includes removing money from bank accounts, abuse of a Power of Attorney and, attempts to sell an older person’s home (or other property). Experience suggests that types of abuse often occur together, and in fact, where one type is suspected, others are indicated. Psychological abuse, which is characterised by threats and intimidation designed to control an older person, also often involves an assault. Psychological abuse often occurs together with financial abuse. It is as if an abuser has to first intimidate and control an older person before they can abuse their finances. Physical abuse involves the infliction of harm such as bruising, gripping, restraining and hair pulling which frequently constitute an assault. Experience suggests it can even extend as far as false imprisonment. Social abuse involves the limitation of the lifestyle choices that an older person might make, for example where they go or who comes to see them (and is close to false imprisonment). Neglect is the failure to provide essential support for the older person who is unable to manage independently in one or more areas of daily living. Sexual abuse involves rape and sexual assault.

2002_801.png

Table 2 shows the types of abuse reported to the Aged Rights Advocacy Service in 2000 - 2001[5] . As with table 1, the pattern shown here is indicative of the general trend of situations of abuse that the agency responds to. Psychological abuse is generally the most common form of abuse. However, it is rarely reported in isolation, often it is combined with financial abuse.

It will be observed that the areas of congruence described above focus on the criminal law. Advocates of the Aged Rights Advocacy Service frequently work with lawyers from the South Australian Legal Services Commission. Those lawyers have advised us that they have supported older abused people across a range of civil law areas, including: wills and estates, Enduring Powers of Attorney or Guardianship, property law, contracts, retirement village contracts, debt recovery, eviction, trusts (e.g. an older person investing in property with their children and not getting their name on the deeds of ownership), the Supported Residential Facilities Act, the Residential Tenancies Act and Guardianship Board matters[6] . The inference is that elder abuse may be implicated in a very broad range of legal issues.

One might ask how widespread is elder abuse? The Aged Rights Advocacy Service was involved in a South Australian Department of Human Services survey of the prevalence of elder abuse in the general community. 1158 older South Australians were randomly selected from the electronic white pages and asked about their experiences of abuse. Data yielded by the survey was weighted so as to reflect key variables, principally the urban/rural split of the SA population of older people. To that extent, the survey provides a reliable state-wide index of the prevalence of elder abuse amongst this population of older people. The authors believe that the data gives a reliable index of the extent of abuse in any given population of older South Australians, and in fact of any population of older Australians.

Table 3 the Prevalence of elder abuse in South Australia



Males

Females

Persons

n
%
n
%
n
%
Elder abuse
11
2.1
21
3.2
32
2.7
No elder abuse
492
97.9
634
96.8
1126
97.3
Total
503
100
655
100
1158
100

Overall, 2.7% of respondents said they had experienced abuse. 95% confidence intervals put elder abuse in a range between 1.9% and 3.9% of all older Australians[7] . 1996 census data suggest that this could mean that as many as 85,000 older Australians are likely to be subject to abuse at any given point[8] . In South Australia, the figure is 8500 (approx.)[9] . To our knowledge, this study is the first of its kind to provide this information about the Australian general community. One of the most striking aspects of prevalence data is that it is likely to underestimate the extent of the problem. Authors such as Kurrle have argued that most elder abuse goes unreported because of lack of awareness, the difficulty of older people to report abuse (for example an older person may be isolated by language, hearing, dependence etc in a way that children aren’t; thus children are more likely to attend some form of child care than older people are to attend day care). Older people are frightened of institutionalisation, the signs and symptoms of abuse can be confused with what is considered to be ‘normal’ ageing, lack of knowledge about the rights of older people in both general and professional communities and a general lack of community awareness[10] .

This prevalence rate is consistent with the 3-5% established in international literature[11] . Perhaps the most useful way to make sense of these statistics is to consider twenty or so older people that one knows, either professionally, personally or in passing. These figures suggest that as many as one of them is likely to have experienced abuse since turning 65 years of age. The inference is that abuse has the ability to touch one’s life in a very direct way.

Where does elder abuse come from; what are its causes? The truth is that no definitive research has been done on causality. However, there is a body of evidence about risk factors associated with abuse. These include issues of dependence (either physically or mentally), family conflict (either between spouses or between generations), and alcohol and drug abuse. Wherever one comes across these issues in one’s dealings with older people, it is reasonable to assume that abuse may also be present.

Much of the early thinking about causality posited a carer stress paradigm. It assumed that older people become frail and dependent as they age. In so doing, they become a burden on those who care for them. Their carers come to resent the ‘burden’ of caring, and so take their frustrations out on the older person.

Data collected by the Aged Rights Advocacy Service[12] records the presence of carer stress at less than 10% of all risk factors. Furthermore, the carer stress paradigm suggests that older people are somehow ultimately responsible for the abuse they experience, by becoming a ‘burden’, and also that carers will necessarily become abusers. These assumptions are ageist, and have not been supported by experience.

In fact the Aged Rights Advocacy Service has found that if dependence is present, it often flows from abuser to older person, particularly if the abuser is a child with drug or alcohol management issues.

There is no clear understanding of causality concerning elder abuse. Notwithstanding this, however, there is evidence about the impact of abuse on those who experience it. The survey of 1158 randomly selected older South Australians mentioned above also asked respondents about the experience of mental ill health. The study design involved the administration of the General Health Questionnaire, a statistical tool that over the last three decades has been found to be a reliable indicator of non-psychotic mental health conditions such as depression.

Overall, 31.8%, of those who experienced abuse, or almost 1 in 3, said they had mental health problems. This figure compared to 8.9% of the general older population, or approximately 1 in 11. These figures point to a much stronger association between abuse and mental ill health than in the general population, and tell us something about the devastating impact of abuse on those who experience it.

The survey asked further questions about suicidal ideation in respondents, with questions such as: ‘Over the past few weeks, have you thought about the possibility that you might do away with yourself? Also asked was: ‘Over the past few weeks, have you found that the idea of taking your own life kept coming into your mind?’[13] . The gulf between the survey populations was even greater here. 23.7% of older people who had experienced abuse said yes to suicidal ideation. Almost 1 in 4 compares to less than 1 in 25 of the general population (3.8%).[14]

These figures serve to illustrate the greatly disabling impact of abuse on those who experience it.

Legal issues in relation to abuse

So, all of this data leads one to beg the question; what has been done in response to this problem? What legislative stance has the political community taken?

With children and abuse, the answer to these questions is straightforward. Mandatory reporting legislation has been enacted. In South Australia today, there is one state-wide number that we can all call, at discounted cost, in order to make reports about a child that we believe is being abused by a parent. Appropriate people so designated by the state then investigate the matter, and we have no further role to play.

The situation with all adults, but particularly for older people, is less clear-cut. Unlike nearly all of the United States of America, there is no mandatory reporting for elder abuse anywhere in Australia. In the USA, many categories of professionals are able to make referrals to Adult Protective Services about older people they believe to be abused, and to be protected from the legal consequences of a wrong referral (that is referring someone who is not experiencing abuse), particularly defamation. Included in this range are jobs and professions as diverse as bank clerks and lawyers.

In South Australia (and nation wide), the only circumstances in which such a referral could be made is where there is clear medical evidence of incapacity on the part of any older person, and the relevant authority to apply to is the Guardianship Board. The Guardianship Board can order investigations into suspicious circumstances (by the Office of Public Advocate), but their primary purpose is to appoint alternative decision makers for finances and lifestyle in situations of conflict, abuse and incapacity.

That is to say, in Australia, as a community we have decided to leave intact the presumption that all adults (unless proven otherwise) are able and entitled to make informed decisions, even in situations of abuse. Information on which to base those choices comes from sources as diverse as the media, community opinion, publicised information about elder abuse etc. Included in this range would be the influence of professionals such as lawyers have on their older clients.

The onus to take any action about abuse rests squarely on the shoulders of the person experiencing it. The implication is that adults are entitled to make informed decisions about all areas of their lives, including apparently ‘poor’ decisions to put up with abuse.

In fact, such a stance recognises the complexity of abuse, where an older person is invariably suffering the mal-actions of their nearest and dearest, whom they are likely to still love and fell responsible for, even though they may hate the abuse they experience at the same hand with equal venom.

The argument this paper seeks to make is that lawyers have a significant role to play in supporting older people to overcome situations of abuse. However, before detailing that response, consider the following:

Research suggests that most older people who experience abuse chose not to seek help to overcome it (67.4%)[15] . This is consistent with our expectations of a phenomenon that is so deeply personal and individual. Indeed, one might expect that older people don’t seek help because they believe that they will experience retribution from the abuser if they do try to stop the abuse.

Whilst this must be true, research suggests that this is not the primary reason why older people chose not to do anything about abuse. Rather, the primary reason is that they believe that nothing would change, even if they tried, and that there was no one in whom they could confide.

The positive message in all of this is that if professionals respond to older abused people appropriately, we can support them to make far-reaching decisions to overcome abuse (as was indicated in the introduction).

The basic modus operandi of the Aged Rights Advocacy Service is to support older people to make choices about strategies to redress abuse, strategies that we help to find out, present to the older person, and then help them to implement. We prioritise the right of the older person to make choices in this area, about what to do to put right the situation. Evidence has been published in peer reviewed journals, which shows that in cases where the outcome was known, 50% of older people were supported to stop abuse, and a further 30% were supported to make choices that went some way to stopping abuse[16] .

The fundamental premise of this paper, illustrated by this data, is that older people can be supported to uphold their rights, and make decisions to act to stop or reduce the abuse they experience.

In many ways, the experience of ageing is a complex one. It has been estimated that older people make an economic contribution to South Australia of between $5.2 and $9 billion per year. The total cost of supporting them is $1.8 billion per year[17] . Yet, the experience of ageing for some can be one of discrimination and loss. It can seem harder to exercise choice. It can be harder still when an abuser is present, particularly, for example when visiting professionals such as lawyers. Experience suggests that there will have been many instances where a child whom one suspects is not acting in the best interests of an aged parent accompanies an older person to a lawyer’s office.

By supporting an older person to uphold their rights it is possible to contest the impact of discrimination and abuse, and enable them to stop and overcome harm.

The response of everyone, in both professional and general communities is crucial to over-turning a situation where two out of three older people don’t do anything about abuse because believe nothing will change even if they try.

Thus, as lawyers suspecting abuse, an effective response is to take an older person seriously when they talk about abuse, or one of the risk factors (mentioned earlier) that might indicate abuse is suspected.

In such circumstances, as others such as Ames and Harley[18] have argued, it is incumbent on the lawyer to ascertain what the true wishes of the older person are. It is advisable to see the older person individually in order to do so. Furthermore, the Aged Rights Advocacy Service has supported older people to get a medical assessment of their capacity to give legal direction, so as to forestall future conflict about whether or not these really were the true views of the older person. It is vital, however, that such an opinion is reliable beyond reasonable doubt. Thus, an independent hospital based specialist such as gerontologist, or consultant psychologist may be preferable.

Case study - Mrs Smith

Mrs. Smith is an older person who had given an Enduring Power of Attorney to her nearest relative, her niece. The sole owner of two properties, she lived in one whilst the niece lived in the other. The first hint that Mrs. Smith had of abuse was when one of her old neighbours telephoned her and said ‘I didn’t know you were selling your house’ (prompted by an estate agents board). Mrs. Smith had not directed the sale; the niece was abusing the power granted to her as donee. Whilst Mrs. Smith was able to stop the sale and revoke the EPOA she discovered that tens of thousands of dollars had been taken from her. Many of the elements of abuse discussed above, particularly suicide attempts, were true for Mrs. Smith.

Mrs. Smith had an ultimately positive experience of the legal system. However, along the way she experienced a number of setbacks. The two most notable were:

She was unable to use the criminal law successfully. She was unable to report the matter to the Police in a manner that convinced them to investigate it.
She also went to more than one firm of lawyers before she found one that she felt took her and her situation seriously. And serious it undoubtedly was.

In the civil court, Mrs. Smith was awarded almost $80,000 in damages. Since the niece was unable to pay, Mrs. Smith then pursued the matter to bankruptcy in the federal magistrates court. This required a third firm of lawyers.

Mrs. Smith was able to use the legal system successfully. However, her conviction is that it was only the intervention of an advocate from the Aged Rights Advocacy Service that enabled her to bridge the gap she felt between herself and her lawyers.

There are many positive examples that illustrate older people successfully using the legal system. For example, the Aged Rights Advocacy Service has supported an older couple to make choices to ask a lawyer to help them regain ownership of a house that they had gifted to their children (in exchange for promises to look after them for the rest of their lives). The lawyer’s perspective was that receiving direction in this case, from an older couple where the husband was living with Parkinson’s Disease, and the wife in the early stages of a dementing illness (note that the husband was the actual client, for he was the one with capacity), was a process that was inextricably legal, social and medical. The husband would only make decisions in consultation with his wife, even though she could not make informed choices. The lawyer supported his right to do so, whilst ensuring that he was also mindful of the limits of the situation, both legally and medically. The outcome was highly successful, and the older couple were able to regain control of their asset.

Approaches such as these illustrate a mode of intervention that is legally, socially and medically responsible. It is an approach that maximises the ability of older people to make choices for themselves about their circumstances, and serves to counter the ageist processes in society that otherwise limit them.

Conclusions

This paper has sought to describe abuse of older people, in terms of definition, prevalence and risk factors. Issues of elder abuse and the law have been discussed, illustrated by case studies. It has sought to demonstrate that lawyers are at one of the key interfaces between the private world of abuse and the public, professional world that can respond to it.

As such, the actions of lawyers are very important in supporting older people to uphold their rights and make choices to overcome situations of abuse.

South Australia now has the highest proportion of older people in Australia and projections show that this trend is likely to continue[19] . Australia is an ageing society. In an era when issues concerning older people are coming to the fore, not only is it incumbent on all of us to respond appropriately, there is an increasing demand from the community to do so.


[1] The Aged Rights Advocacy Service is funded by the Commonwealth Department of Health and Aged Care, the Home And Community Care Programme, and the Office for the Ageing.

[2] For the full text, refer to the International Federation on Ageing – Declaration on the Rights and Responsibilities of Older Persons. http://www.aoa.gov/international/principles/default.htm

[3] Australian Network for the Prevention of Elder Abuse, 1999

[4] Aged Rights Advocacy Service Abuse Prevention Program Annual Summary (2001)

[5] Aged Rights Advocacy Service, Abuse Prevention Program Annual Summary, (2001). Please note that sexual abuse (which is a very small proportion) is incorporated within physical abuse for these purposes.

[6] The Aged Rights Advocacy Service would like to acknowledge the assistance of Owen Ames, Barrister and Solicitor with the Legal Services Commission SA, in deriving this list.

[7] Dal Grande et al Interpersonal Violence and Abuse Survey: September 1999 (2000) South Australian Department of Human Services, available at www.dhs.sa.gov.au

[8] Australian Bureau of Statistics (1996) 1996 Census of Population and Housing Australia, Commonwealth of Australia

[9] Australian Bureau of Statistics (1998) Population by Age and Sex, South Australia, Commonwealth of Australia

[10] Eg. Kurrle Australasian Society for Geriatric Medicine: Position Statement on Elder Abuse, Australasian Journal on Ageing 1992, 13, 4, 172-175; Kurrle, Sadler (1995) Kurrle (1993) Responding to Elder Abuse – A follow up study of interventions and outcomes, Australasian Journal on Ageing,12,4,5-9, Kurrle and Cameron (1995) Dementia and Elder Abuse Australasian Journal on Ageing, 14,1,36-40,

[11] E.g. Pillemer and Finkelhor (1988) ‘The Prevalence of Elder Abuse: a random sample survey’, Gerontologist, 28,1, 51-57;

[12] Aged Rights Advocacy Service Abuse Prevention Program Summary, 1999, 2000 & 2001

[13] Dal Grande et al (ibid, p270)

[14] The comparison figures quoted here are derived from populations surveyed with an identical methodology to the one employed in this survey, in Wilson, Wakefield and Taylor, The South Australian Health Omnibus Survey. Health Promotion Journal of Australia, (1992) 2:47-49, and Taylor, Dal Grande and Parsons, Mental Health Status of South Australians October (1997), South Australian Health Commission.

[15] Dal Grande et al (ibid, p 231)

[16] Cripps (2001) “Rights Focused Advocacy and Elder Abuse”, Australasian Journal on Ageing, 20.1,17-23

[17] Ranzjin, Andrews et at (2001) Ageing and the economy in South Australia: social capital and productive ageing. A report prepared for the Office for the Ageing, Department of Human Services, Government of South Australia

[18] Ames and Harley (2001) “Elder Abuse: being part of the solution, not part of the problem”, The Law Society Bulletin 23,3

[19] Older South Australians: the facts. Selected information and statistics for the general community Department of Human Services, (2001) Adelaide.


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