Elder Abuse

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Missed opportunities to address elder abuse While the Society certainly wants action to be taken on elder abuse, including financial abuse, it was with some alarm that we saw yesterday the introduction in the Legislative Assembly of flawed legislation to address the issue.

The Crimes (Offences Against Vulnerable People) Legislation Amendment Bill 2020 introduces criminal offences that are poorly thought out and risk duplicating offences already applying in the ACT. The creation of additional offences was recommended against in the Australian Law Reform Commission report, Elder Abuse A National Legal Response (May 2017), but despite that the Government is proceeding after an inadequate and truncated consultation process. The Society’s and the Bar Association’s carefully considered comments
have again been ignored.

For example we objected to and sought clarification of the intent of the phrase ‘for any other reason is socially isolated or unable to participate in the life of the person’s community’ which is part of the definition of “vulnerable person”. The phrase is incredibly vague and uncertain in its operation and should not be used to support a criminal charge.

There is a genuine fear now that the broad criminal provisions could bring about a reluctance for some carers to take on or continue the role of carer for fear of unintended consequences.

There is a pressing need for governments in Australia to do more in relation to elder abuse, and the Society and the Bar Association have communicated with the AttorneyGeneral on a number of occasions with specific suggestions for actions that could be taken to combat various aspects of elder abuse for example, in relation to witnessing requirements for Enduring Powers of Attorney. The ACT Government has to date failed to act on these suggestions.

Instead the new witnessing requirements under today’s Covid19 legislation will allow Enduring Powers of Attorney to be witnessed remotely. While this may have some attractions from an expediency point of view, it will also severely increase the risk of elder financial abuse. That is, it is diametrically opposed to the notion of having such documents properly explained and witnessed by competent independent persons. Practitioners should use these new provisions with extreme caution, as there remains the obligation to always act in the best interests of your client usually that is the donor of the power.

Chris Donohue
President, ACT Law Society