Introduction

Our legal needs change over the course of our lives. Elder law is an area of legal practice that focuses on issues that affect the ageing population.

Elder law generally describes the laws relating to powers of attorney, wills, guardianship and retirement.

One of the purposes of elder law is to prepare elderly people for financial freedom and autonomy through proper financial planning and long-term care options.

This chapter is committed to a range of issues that are especially relevant to older Canberrans, including:

• Elder abuse
• Retirement Villages The following topics that are relevant are discussed elsewhere in the ACT Law Handbook:
• Enduring Powers of Attorney (see Enduring Powers of Attorney Chapter)
• Advance Care Planning (see Advance Care Planning section of Enduring Powers of Attorney Chapter)
• Guardianship and Financial Management (see Guardianship and Management of Property Chapter)
• Wills and Estates, discussed in another chapter (see Wills and Estates Chapter).

Unfortunately older persons may be find themselves in a position of some vulnerability. Sadly it is not uncommon for older persons to be exposed to psychological, financial and physical abuse. There are, however, steps that people can take to help protect them against the risk of harm. Some of those steps are discussed in this chapter.

What is Elder Abuse?

Elder abuse, as described by the World Health Organisation, is ‘a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person’.

The Australian Network for the Prevention of Elder Abuse defined elder abuse as ‘any act occurring within a relationship where there is an implication of trust, which results in harm to an older person. Abuse can be physical, sexual, financial, psychological, social and/or neglect.’

It is relevant that all definitions of elder abuse state that the abuse occurs in a relationship of trust.

There is no accepted age at which a person becomes an ‘elder’. The Australian Concise Oxford Dictionary definition of elder includes ‘persons of greater age or seniority’, ‘persons venerable because of age’ and ‘a person advanced in life’. The Federal Government’s 2007 report Older People and the Law uses the term ‘older Australians’ when referring to persons aged 65 years or over . It has also been suggested that Aboriginal and Torres Strait Islander people can be considered ‘elder’ at a younger age.

There are a number of reports and studies addressing the prevalence of elder abuse in Australia and internationally. Elder abuse largely occurs within families and adult children are the most common perpetrators. The World Health Organization has estimated that the rate of elder abuse in high and middle-income countries ranges from 2% to 14%. According to the ACT Legislative Assembly, people aged 60 years and over in the ACT are expected to increase from 15.8% in 2010 to 19.6% by 2020 and 22% by 2030. Australia’s population is aging and growing. As a result elder abuse is expected to increase.

Elder abuse is thought to be largely underreported. This might be because:

• few people are aware of their rights;
• pursuing civil legal remedies through litigation requires an older person to have the funds to pay for legal fees;
• the special needs of the complaint means there is an inability to access support, including physically or mental inability to report;
• older persons may be reluctant to implicate family members in legal processes through initiating civil action or reporting criminal behaviour, particularly where a person is dependent upon family members for accommodation, care and support;
• abuse brings feelings of shame and guilt;
• there may be a fear of retribution;
• coroners are not looking for elder abuse being a possible cause or contributor to death;
• the elder person relies on their family for care and support and reporting may result in collateral damage such as guardianship or institutionalisation and removal of autonomy;
• privacy law means a lack of sharing between organisations;
• people do not want to draw attention to their family or implicate family members.