Who’s Looking out for Older Australians?

Wills, Estates & Succession Planning 19 February 2016

In recent years, significant advancements in medical research, together with increased affordability of and access to revolutionary treatments and medications, has seen a dramatic increase in life expectancy, as well as a general shift towards prolonging life.

For these reasons, our older generations are living longer; often surviving diagnoses of previously terminal illnesses, but this does not necessarily mean that older Australians are living with optimum quality of life. Serious illness leaves physical and emotional scars, and decreases resilience, and even for those lucky enough to avoid a diagnosis of serious illness, ageing takes its toll and for that there is no cure.

Factors including reduced mobility, communication barriers, such as loss of hearing or cultural differences, illness, including side effects of treatment, reduced social interactions and the imposition of restrictions on otherwise regular activities, such as driving may mean that older Australians are no longer able to do the basic tasks they have been able to do all their lives and become increasingly reliant on relatives or friends to complete basic tasks such as attending medical appointments, preparing meals, bathing and laundry.

Elder abuse

Elder abuse is a term used to encapsulate any form of abuse inflicted on an older person and generally perpetrated by someone that the older person depends on and trusts, or originally trusted.

The abuse may include, but is not limited to:

  1. Physical abuse;
  2. Financial abuse; such as misappropriation of funds, coercing a person to change their Will or appoint a Power of Attorney, or removing control of financial affairs;
  3. Psychological abuse; such as verbal intimidation or shouting, belittling or harassing behaviour or withholding affection (i.e. refusing access to grandchildren);
  4. Social abuse; such as restricting a person’s external support, or claiming others are interfering; or
  5. Neglect; such as failing to provide adequate food or water resulting in malnutrition, misusing medications or failing to provide necessary aids (i.e. walking frame).

An imbalance in power between the elderly person and the perpetrator may mean that the older person is fearful of the repercussions of voicing their concerns, which may result in further abuse or abandonment. Additionally, family conflict may mean that the older person has no one else to turn to for support, and the perpetrator, knowing this, is in the ultimate position of power to engage in abusive behaviour.

Powers of Attorney

A Power of Attorney allows a person to appoint another person, such as an adult child or a trusted friend, to assist them in certain aspects of their lives.

For example, a financial Power of Attorney allows a person to appoint an Attorney who can help the person manage their financial affairs, and can continue to manage the person’s financial affairs after that person has lost the capacity to make their own decisions. By appointing an Attorney, the person can ensure that their affairs are handled in accordance with their wishes, as opposed to the situation which arises when no Attorney has been appointed and management of a person’s finances is without direction and susceptible to abuse.

Capacity

Older Australians are strongly encouraged to consider how they wish to live, who they would prefer to care for them and how they wish for their affairs to be managed in their later years, whilst they are fit, healthy and capable of making informed decisions. This helps to avoid assertions whereby their capacity to appoint an appropriate Attorney may be called into question.

A person is assumed to have capacity, which includes the ability to:

  1. Understand information that is relevant to the making of a decision;
  2. Retain information relevant to the making of a decision;
  3. Weigh up the information in the process of making a decision; and
  4. Communicate their decision.

An example of where an issue with respect to capacity may arise is where a person receives a diagnosis of Alzheimer’s disease and shortly thereafter appoints a new Attorney. Depending on the stage of the disease, the disease may have an impact on the person’s ability to make decisions. If family or friends disagree with the person’s decision as to who to appoint as their Attorney, they may challenge the appointment, asserting that the person did not have sufficient capacity to make the decision.

The mere assertion that an older person does not have capacity can cause considerable stress, with the older person left wondering how they will spend the remainder of their lives and whether in fact they are suffering from diminishing capacity. Should the assertion be proved, the older person essentially loses all control over their affairs from that point onwards, which has the potential to cause mental illness and depression in the older person. Should the assertion fail, irreparable rifts in families are often caused.

Furthermore, in families with sustained conflict, a challenge to an appointment of an Attorney may be used as a tool to undermine an older person or the Attorney duly appointed, which only reiterates the fact that the earlier these mechanisms are put in place, the less likely it will be that the older person’s judgment can be called into question and the more likely it will be that the older person’s wishes will be followed.

Misuse of Power

Powers of Attorney govern an Attorney’s powers with an emphasis on honesty, diligence and good faith. However, where there is an imbalance in power, there is always the opportunity for abuse.

Recent changes to the legislation governing Financial Powers of Attorney has responded to the susceptibility of older people to abuse by significantly increasing the penalties that can be imposed if an Attorney misuses their power. An Attorney who fails to meet their obligations, such as by misappropriating funds, failing to keep proper records or causing loss to any person, may face a maximum five years imprisonment or a maximum fine of $90,000.00.

Closing comments

Whilst we hope that older Australians in our community are treated well and fairly in their later years, this may not always be the case. It is therefore imperative that independent legal advice is obtained whilst older Australians are still capable of making their own, informed decisions, to ensure their rights and interests can be protected from abuse in the long term.

At Coulter Roache, we want you to feel comfortable in the decisions you make for your future. We will take the time to meet with you, discuss your options, ensure you understand any potential legal issues and ensure your plans are consistent with your wishes. If we have any concerns about your capacity, or are concerned that someone may challenge your capacity, we will make arrangements to minimise the stress this would cause. Ultimately, we want to help you put plans in place now, so that you may enjoy yourself without having to worry about what your future holds.

If you require advice or further information in relation to any of the matters discussed in this article, please contact our Wills, Estates & Succession Planning team on 03 5273 5211.

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