In my work as an Aged Care Placement Consultant I sometimes come across abuse of my elderly clients and I take this very seriously. I attended the the 4th National Elder Abuse Conference 2016 in Melbourne last year following where they announced that a national enquiry into elder abuse was to be conducted by the Australian Law Reform Commission. The Commission has come up with a range of recommendations and have accepted responses to those recommendations. They will announce the final recommendations in August 2017. I have been interested to see what these recommendations are and note that some refer to guardianship, enduring documents, aged care as well as Centrelink payments and family agreements.
In life each adult has personal and lifestyle decisions that need to be made and they also need to be able to manage their own financial affairs. However, if the tribunal is satisfied that a person no longer has the capacity to manage those aspects of their life, due to a loss of legal capacity, it will appoint a Guardian and Financial Administrator. Typically, the person’s family member would be appointed if there is one available to perform the role. Only where there is not a family member would an external party like the State Trustees be appointed. I have on occasion been asked to find suitable aged care accommodation for a client by a State appointed Guardian.
Unfortunately, because the Guardian and Financial Administrator has complete control over the elderly person of both financial and lifestyle matters it does make the elderly person vulnerable and there is a risk these arrangements can be abused. This could be deliberate where the Guardian and Financial Administrator uses the powers to take money away from the person under the financial administration order, but the enquiry found that the most common type of elder abuse is really mismanagement of the funds through misunderstanding or confusion.
So the Commission’s recommendations are that more information about the nature of the role is made available in tribunals and that people accepting this appointment sign an undertaking that they understand the nature of their obligation. They believe this would minimise the risk of someone taking on the role without understanding their responsibilities and the scope of the role.
The best way to protect a person when they lose capacity is to be prepared before it happens and put in place enduring documents where the person appoints someone in their family they consider is best suited to make decisions on their behalf. The enquiry found that one of the risks with enduring documents is that they can be used after they are revoked. They made several recommendations, firstly to establish a national online register of enduring documents so documents can be verified to ensure that they only operate when they are genuinely authorised by the person. Secondly, to develop a suite of national safeguards that include enhanced witnessing requirements so a person isn’t under duress when signing, certification to ensure the person understands what they are signing, protections from attorneys’ conflict of interest; so they don’t make decisions to benefit themselves rather than the principal.
Also the language used for these roles was assessed and the Commission proposes that they be renamed representative’s agreements, reflecting that when you’re acting on behalf of someone else under these document you’re essentially representing the person. Another recommendation was for a mechanism for low cost compensation be available in cases where a person has been financially abused.
These recommendations seem like sensible and simple solutions that would help to offset the risk of elder abuse that can occur when a person loses capacity. Next week’s news blog will explore the problems of elder abuse in aged care and the Commission’s recommendations.