Ageism as a factor of elder abuse (2022)

Queensland Law Society

Keynote: Succession and Elder Law Conference

Friday 11th November, 2022 Conference Centre, Hotel Grand Chancellor Brisbane (Check against delivery)
 

Introduction

• I would like to thank the Queensland Law Society for inviting me to open today’s Succession and Elder Law Conference.
   
• I wish to acknowledge the Turrbal and Jagera peoples as the traditional owners of the land from which I speak and pay respect to their Elders past, present, and emerging.
   
• As Age Discrimination Commissioner, I have made it my priority during my term to address three major manifestations of age discrimination— elder abuse in the community, older women’s risk of homelessness and age discrimination and the workplace.
   
• Today I’ve been asked to speak to you on the topic of ageism in the human rights context and as a factor of elder abuse.
   
• Australia’s population over 65 is forecast to increase from 3.8 million in 2017 to between 6.4 million and 6.7 million in 2042.[i]
   
• There are currently 4,400 centenarians in Australia, and the Australian Bureau of Statistics estimate that there will be 50,000 centenarians in Australia by 2050. Given this growth in Australia’s older population, conferences such as these that focus on succession and elder law are critical if we are to go some way towards mitigating against elder abuse.  
   
• Even before my appointment as Age Discrimination Commissioner, I have long been interested in the rights of older Australians. 
   
• Over 50 years ago, when I was studying child development, one of my lecturers was severely criticised by her colleagues for showing us a US 16mm black and white film of children who had been abused. They told us that she was an alarmist and that those sorts of things happened in the US, but not in Australia. 
   
• We have since seen how wrong they were.  
   
• Elder abuse started to gain recognition as an issue in the 1990s and has been slowly gaining momentum since then. 
   
• It is now at the stage in public awareness and political consciousness that child abuse was many years ago, and family violence was until relatively recently. 

Relationship between ageism and elder abuse

• Before I dive deeper into elder abuse, I want to make some comments about ageism.
   
• In 2021, the World Health Organization released the ’Global Report on Ageism’. It contains one of the best definitions of ageism I have come across: ‘Ageism refers to the stereotypes (how we think), prejudice (how we feel) and discrimination (how we act) directed towards people on the basis of their age.” [ii]
   
• Ageism undermines the human rights of older Australians and is an obstacle to achieving a fair and equal society which respects and recognises the inherent rights of all people.
   
• It can result in older people feeling they cannot exercise their rights and that their concerns are not being acknowledged and addressed.
   
• Ageism can be malevolent or benevolent. Families, health professionals and institutions like aged care facilities can overprotect and reduce an older person’s autonomy – sometimes to the point of malevolent ageism, which can lead to the ignoring of the wishes and autonomy of older people. This is a form of abuse and neglect.
   
• Elder abuse often starts with ‘benevolent ageism’; where attitudes tip the scales towards protection and away from respect for an older person’s independence and autonomy. For example, limiting an older person’s social interactions or activities in ways that go beyond public health advice during COVID-19.
   
• When taken to an extreme, these attitudes can result in elder abuse, leading to real harm to the older person; be it financial, physical, psychological, sexual, neglect, or a combination of these.
   
• During the pandemic, for example, I have heard examples of adult children moving their parents in with them to protect them, with disastrous consequences. In one case the older parent was moved into their child’s backyard shed. In another, the older parent was put into a room of the house, forced to eat, sleep and spend all their time there.
   
• Ageism can be two-way.  People can be ageist – making assumptions and judgements about what some can and cannot do based on their age. We can also have ageist views about ourselves. Known as internalised ageism it can have detrimental effects on our health and wellbeing. The domino effect is that, because of their self-directed ageist thoughts, older people feel they cannot exercise their rights or speak out to report abuse.

Elder abuse in Australia

• The World Health Organization defines elder abuse as:
  • ‘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.’[iii] 
     
• Australia’s first National Elder Abuse Prevalence Study was published in December 2021.  This is the first time we have detailed and specific prevalence data about elder abuse in Australia. 
   
• The report found almost 1 in 6 (14.8%) older Australians reported experiencing elder abuse in the 12 months prior to being surveyed.
   
• In this study psychological abuse was the most common form of abuse followed by neglect, financial, physical and sexual abuse.
   
• Worryingly, it found that almost two-thirds of older people do not seek help when they are abused. This highlights how hidden and underreported elder abuse still is. We need as many eyes and ears as possible, including from the legal profession, who are at the coal face of interacting and providing advice to older Australians, to help prevent and combat elder abuse.
   
• As you know, what makes elder abuse difficult to tackle is that perpetrators are often those closest to the older person, such as their son or daughter. As a result, many older victims may be reluctant to report abuse or seek legal redress. This is why it is important for lawyers and anyone who identifies or suspects elder abuse to approach the issue sensitively and to have an awareness of the range of elder abuse supports available, including non-legal options like family mediation services. 

What supports are available 

• Under the National Plan to Respond to the Abuse of Older Australians, the Federal Government has put in place a number of services and supports to assist those experiencing elder abuse.
  
  These include: 
  • A National Elder Abuse Phone Line 1800 ELDERHelp (1800 353 374)
  • Elder Abuse Action Australia (EAAA) and COMPASS  website
  • Elder Abuse Service Trials - including Specialist Elder Abuse Units, Health Justice Partnerships, Case Management and Mediation Services. 
  • In Queensland funding has been provided by the Federal Attorney General’s Department for elder abuse service trials by the Caxton Legal Centre  and Relationships Australia (QLD). 
     
• There is no one-size fits all approach to elder abuse and the service trials showcase the importance of having a range of interventions at all stages to assist older Australians. 

What I am doing 

• As for me, in my role as Age Discrimination Commissioner, I have been advocating for the implementation of recommendations from the 2017 Australian Law Reform Commission report Elder Abuse – A National Legal Response.
   
• The final report contains 43 recommendations, covering a range of topics including enduring appointments, criminal justice responses and family agreements.
   
• I have been committed to ensuring that recommendations from the report do not sit on a shelf (like so many other reports) but are acted on and implemented.
   
• To this end, I have been advocating for all the Australian Attorney-Generals to agree to 
  1. a national register of enduring power of attorney and guardianship documents and 
  2. harmonisation of legislations around powers of attorney across jurisdictions.
    
• Current inconsistencies across jurisdictions cause confusion in the community, make it difficult for families to understand the rules, and for experts to provide advice across jurisdictions. 
   
• They also impede cooperation between state and territory public advocates in investigating instances of abuse of an attorney’s powers and that the Attorney understands the responsibilities of that role.
   
• Harmonisation would make it easier for families to look after older family members in other jurisdictions as well as to educate older people about their rights and attorneys about their responsibilities.
     
• I have also been encouraging the development of education materials and training for professionals in all sectors who work with older people. 
   
• Lawyers would similarly benefit from information and training on how they can help prevent and respond to elder abuse. For example, lawyers assisting people to prepare enduring documents need to ensure that the older person understands their rights to set conditions on their power of attorney and to revoke it.  
   
• I have been encouraged to see the development of elder law courses at universities, as well as CPD training for lawyers. 
   
• There are also many good elder abuse resources out there for the legal profession, including those available on the QLD Law Society website. The Law Society of NSW’s Elder Law, Capacity & Succession Committee has also developed a number of guides and resources on its website. It may be worth having a look at these and considering if any can be adapted to your jurisdiction. 

Other projects

• My team and I have also undertaken several initiatives to raise awareness of ageism and elder abuse.
   
• Last year we released the report ‘What’s Age Got To Do With It’, which provided a snapshot of ageism across the Australian lifespan. We are currently in the process of developing a follow-up project examining beliefs and perceptions about ageing and older people held by individuals working for service providers including in residential care, aged care, and community/recreational groups.
   
• We have also created bookmarks and posters promoting the National Elder Abuse phone line 1800 ELDERHelp which we’ve had translated into 19 other languages. These are freely available to organisations and if relevant to you or your firm, I encourage you to place an order via the Commission’s website.
   
• This year, on the International Day of Older Persons in October, we launched a new elder abuse video campaign titled ‘Shift Your Perspective’. It’s the third video in a series tackling elder abuse. The video encourages perpetrators of abuse to think about how their actions might be affecting the older people in their lives.
   
• The radio, social media, and television campaign will air between December and February. This campaign is designed to highlight the common types of elder abuse that can occur between adult children and their parents. The video will be played after this speech and I encourage you to use it in your educational activities and to share it with your own networks.
   
• We are aware that legal tools, such as wills and enduring documents, available to clarify the wishes of older people can assist in reducing elder abuse.  It is in this context, and building on the current video campaign, that we’re undertaking a project focused on encouraging older Australians and adult children to have conversations about planning ahead and to use the tools I just mentioned.
   
• The project will seek to reach people from both CALD and non-CALD backgrounds through the development of plain-English resources which will be launched in 2023. One of the findings from the National Elder Abuse Prevalence Survey was that people born in non-English speaking countries were significantly less likely to have a will or power-of-attorney. It is clear that more needs to be done to raise awareness among CALD communities about the importance of planning ahead and to have their documents in place.

What you can do

• I want to shift focus now and talk about the role you can play as lawyers but also as sons and daughters, grandchildren, neighbours and members of society. 

Succession planning

• Whenever I speak publicly, I always encourage people of all ages to have their enduring documents in place and keep their wills and Powers of Attorney updated. 
   
• It surprises me how many people do not know that they can revoke, appoint more than one attorney and set conditions and limitations on their EPOAs. 
   
• I have been appointed as an attorney myself on a few occasions and I have never been told I need to keep good records or to keep my money separate.  
   
• We know that enduring documents are powerful tools for safeguarding older people’s rights and interest as they age, but they can also be misused and become instruments for abuse.  
   
• Sometimes misuse and abuse happens malevolently. Other times it can happen inadvertently when attorneys are simply not aware of their obligations.  
   
• This is just one example where lawyers can play an important role in advising clients about their rights and responsibilities re making wills and POA’s including setting conditions and safeguards.

Know the risk factors and red flags 

• We can all play a part in combatting elder abuse by knowing the risk factors and red flags.
   
• We know that risk factors for elder abuse include: 
  • social isolation
  • the changing nature of family structures over time (such as who is caring for whom and expectations between generations)
  • financial pressures on adult children, such as rising housing costs – financial or emotional dependency on the older adult 
  • caregiver stress 
  • attitudes of entitlement 
     
• Red flags can vary, depending on the type of elder abuse.  You can learn more about these red flags on the COMPASS website.

Know who to call 

• Know who to call and where to get support. 
   
• Callers to the National Elder Abuse phone line 1800 ELDERHelp (1800 353 374) are redirected to the elder abuse helpline in their state or territory which provides confidential information, support and referrals. Whether as a referral point for your clients or for your own personal networks, this is an important number for everyone to know.

Invest in training

• I encourage you to review and undertake elder abuse training courses, including from LawCPD and other reputable sources.
   
• Stay informed via the COMPASS website and attend elder abuse events such as the National Elder Abuse Conference.

Be active

• Contribute actively to law reform, including on the issue of EPOA harmonisation. The Law Society of Australia is actively engaged in advocating for harmonisations of EPOAs. I have also spoken to the QLD Attorney-General and I encourage you to write to her about this issue as well – we need to gather our voices to bring change to this critical area.
   
• The National Plan to Respond to the Abuse of Older Australians (Elder Abuse) expires next year in 2023 so I urge you also to keep an eye on this and to provide input into the next national plan when the opportunity arises.
   
• I also want to mention a tax amendment, which came into effect on 1 July 2021. 
   
• The amendment provides a Capital Gains Tax exemption for granny flat arrangements where there is a formal written agreement. Previously, families may have opted for informal arrangements to avoid CGT tax, which left older people unprotected and at greater risk of financial abuse.  
   
• This is a small change that has mostly gone under the radar but it is a very important change which all older Australians and professionals advising older people such as lawyers need to know about. 

Lastly … Be an advocate for elder law

• Encourage and train up the next generation of law students and lawyers to specialise in elder law. We have an increasingly ageing population and as the ALRC Elder Abuse report and the Royal Commission into Aged Care Quality and Safety have shown, there is a lot of work to be done in this space to protect and safeguard the rights of older people.
   
• I would love to see more young lawyers specialising in elder law or conducting research or influencing policy change on issues affecting older people. 

Conclusion

• As I say over and over again, the culture we set will be the culture we inherit.

• We will all grow old and one day you may well be the recipient of the systems, policies, and practices you helped to put in place.
   
• We have a responsibility to inform older people about their rights and support them to exercise their rights. Equally we have a duty to educate those in their lives about their responsibilities. If we don’t, we end up with systems and practices that fail to meet the needs of the older people.
   
• Succession and elder law are an important part of protecting the most vulnerable members of our community I look forward to the fruitful conversations that will take place in this conference and I leave you now with our latest elder abuse awareness video: Shift your perspective.
   
• Thank you.

[Organisers to play Elder Abuse Video: Shift Your Perspective]

[i] Australian Bureau of Statistics (2018), Population aged over 85 to double in the next 25 years, Released 22nd November, 2018. Available: https://www.abs.gov.au/articles/population-aged-over-85-double-next-25-years

[ii] World Health Organization, ‘Global report on ageism’. At: https://www.who.int/teams/social-determinants-of-health/demographic-change-and-healthy-ageing/combatting-ageism/global-report-on-ageism (viewed 10 November 2022)

[iii] World Health Organisation, 'Abuse of older people'. At: https://www.who.int/news-room/fact-sheets/detail/abuse-of-older-people (viewed 10 November 2022)