Elder Abuse
Who is an ‘elder person’
Relationships of trust
Not all forms of abuse of an older person will be considered elder abuse.
An essential part of elder abuse is that the person committing the abuse holds a relationship of trust with the older person. The expectation of trust can arise in a family or carer relationship, or in a formal “payment for services” relationship.
Such relationships can include those between an older person and their:
- children, step-children and/or grandchildren
- spouse or partner
- friend
- solicitor
- at-home care worker
- residential aged care worker, nurse, doctor or other residents in an aged care facility
- power of attorney
- guardian
Elder abuse can be committed against an older person by any one of these trusted people.
In each case, the trusted person takes certain action, or doesn’t act when they should, and in doing so they bring harm to the older person.
It is not necessary to show the action or inaction was intentional; in many cases elder abuse results from negligence (a failure to take proper care) rather than from purposeful behaviour.
Types of elder abuse
Elder abuse can take many forms and it may not always be obvious to other people. It includes:
Psychological or emotional abuse:
examples of this type of abuse include when a trusted person:
- subjects an older person to verbal abuse, intimidation, bullying and harassment, name-calling
- degrades, humiliates or treats an older person like a child
- threatens to withdraw affection or to put an older person into a nursing home
- prevents an older person from having contact with family and friends (this is also known as social abuse)
- repeatedly tells an older person they have dementia.
Financial abuse:
examples of this type of abuse include when a trusted person:
- does not honour their responsibilities under an enduring power of attorney and/or enduring guardianship
- takes ownership of an older person’s property on the basis that the older person can continue to live there and be taken care of but fails to honour that agreement
- fails to take care of an older person after agreeing to do so in exchange for money, property or another asset
- forces, pressures, threatens or tricks an older person into signing a will, contract, power of attorney or guardianship (see more about wills and estates disputes here)
- spends an older person’s money without their knowledge or permission with the older person becoming liable for bills they know nothing about
- steals an older person’s money or property
- fails or refuses to repay money loaned to them by an older person
- deceives, coerces or threatens an older person to contribute, withdraw or transfer superannuation funds
- lives in an older person’s home for reasons other than for the benefit of the older person and without contributing to the costs of living
- forges an older person’s signature or forces an older person to sign something.
Physical abuse:
examples of this type of abuse include when a trusted person:
- shoves, hits, pushes, kicks, slaps or handles an older person in a rough manner
- improperly uses “restrictive practices” in hospitals and aged care/residential care facilities (restrictive practices include the use of physical restraints such as ropes or belts or locking someone in a room. They also include the improper use of medications such as sedatives and psychotropic medications).
Sexual abuse:
examples of this type of abuse include when a trusted person:
- rapes an older person or subjects them to other unwanted sexual contact
- touches an older person inappropriately
- uses sexually offensive language with an older person
- Sexual abuse in the form or rape and unwanted sexual contact is also a criminal offence and should be reported to the police.
Neglect:
examples of neglect include when a trusted person:
- fails to provide an older person with the “necessities of life” (which include food, shelter and/or medical care)
- fails to clean an older person’s house or yard having agreed to do so, especially in exchange for money or when living in the older person’s property
- fails to obtain and cook food for an older person
- fails to obtain and administer medication to an older person
- fails to help an older person get out of bed, dress and shower
- fails to make sure an older person’s bills are paid.
Where does elder abuse occur?
Elder abuse can occur in many different contexts. Some examples are when:
- care and medical services are provided at aged care and residential facilities as well as during at-home care;
- people are exercising responsibilities under enduring powers of attorney and enduring guardianships;
- a will, power of attorney, guardianship, contract or other legal document is being entered into or changed;
- there is a transfer of ownership of property, the proceeds of sale of a home or another asset to a family member in exchange for an agreement to be provided with care and the necessities of life (assets for care arrangements).
Who can report and act on cases of elder abuse?
Elder abuse, no matter what form it takes, robs a person of their autonomy, dignity and right to self-determination. It is important that anyone who is being abused, or who knows an older person who is being abused, report and act upon it.
If you are an older person who believes they are being subjected to a form of elder abuse it is important that you speak up and seek assistance and advice.
If you are someone who knows an older person who you believe is being subjected to elder abuse, it is equally important that you try to help them. The starting point is to have a conversation with the older person about the abuse and to offer your support. If you are given permission, your support can extend to reporting the abuse and to seeking legal or other assistance with the older person.
If you are someone who knows an older person who, by reason of disability or a medical condition such as dementia, is unable to report or seek assistance, it is imperative that you step in to help them.
Some of the places elder abuse can be reported to, and advice and assistance can be requested from, include the following:
- in cases of physical and/or sexual abuse the police on 000
- the Elder Abuse Helpline NSW on 1300 651 192 or Interstate on (07) 3867 2525
- the Ageing and Disability Abuse Helpline 1800 628 221
- the National Elder Abuse Phone Line on 1800 353 374
- Legal Aid NSW Elder Abuse Service on (02) 4324 5611
- if your complaint is specifically in relation to care and medical services provided by an aged care or residential care service or in-home care provider:
- managers of residential aged care facilities and at-home care providers
- the Aged Care Quality and Safety Commission on 1800 951 822
Importantly, Segelov Taylor Lawyers can also advise you on action to take in response to elder abuse and your rights and entitlements.
Making a claim in relation to damage and harm suffered as a result of elder abuse
Making a claim in relation to elder abuse is often complex and different laws govern different forms of such abuse. For example, Commonwealth legislation governs elder abuse associated with financial institutions, social security, superannuation, veteran’s entitlements and aged care. State and Territory legislation governs laws relating to enduring powers of attorney and guardianship, wills and probate, retirement villages and the transfer of assets as well as criminal offences.
Given the complexities that often surround the circumstances of elder abuse, and the fact that there are different laws for different forms of such abuse, it is often advisable to seek legal advice to determine what legal rights an older person may be entitled to pursue.
Segelov Taylor lawyers specialise in elder abuse matters and are able to offer advice to older persons, or others seeking to assist older persons, on their rights and entitlements. We offer a free initial telephone consultation, during which we can discuss your circumstances and offer you some preliminary advice on the next steps you can take. Where a claim for damages is made, we act on a “no-win, no-fee” basis.
Common Questions
When we agree to act, we will act on a ‘no win no fee’ basis for persons who have suffered from elder abuse.
We will undertake a preliminary investigation of any claim on a ‘no win, no fee’ basis. In the event, following the investigation we recommend that you commence a claim, we will act for you on a ‘no win, no fee’ basis. If we do not recommend a claim you will not be charged for any of the costs incurred in investigating your claim.
We will provide you with a Retainer and Costs Agreement in which we will undertake to pay all the disbursements incurred in litigating your claim (court fees, fees for expert report) and not charge you for the legal costs as your matter progresses. If you are not successful in your claim, you will not pay our costs or disbursements. If you are successful in your claim, then you will recover most of your costs from the defendant.
Legal options will depend on the individual circumstances, including the nature of the abuse, and the person(s) responsible.
Actions may include:
- claims for damages and compensation;
- actions to set aside financial transactions, etc, that occurred as a result of abuse;
- proceedings in NCAT or other tribunals seeking orders to avoid further abuse.
The individual facts of each matter will determines which form(s) of compensation is most appropriate. Different issues, including time limits, apply to depending on the facts. Segelov Taylor Lawyers can provide expert assistance and guidance on options available for individuals. Some types of claim may be brought together, while others involve giving up other rights.