Power to older Australians
By 2050, one-fifth of our population will be aged over 65. That greater concentration of older Australians will magnify a suite of challenges.
Protecting the rights of the elderly when they are at their most vulnerable, as they transition from home to hospital and aged care, is one. Another is protecting them from elder abuse – physical, emotional, sexual or financial abuse or neglect by someone they trust or is in a position of power.
The lines are often blurred and it can be a fraught space, governed by complex legislation and policies that span health, ageing and law from the state/territory to the Commonwealth level.
Fortunately, two trail-blazing UNE researchers are intent on making it simpler and safer for older people and their advocates, through two novel PhD-I* research projects.
Social worker and lawyer Karen Williams and fellow lawyer and educator Sue Field collaborated [with colleague Professor Carolyn Sappideen] to produce the 2018 publication Elder Law: A Guide to Working with Older Australians, to help legal practitioners, financial advisors, allied health professionals and medical practitioners better understand the complexities of working with older Australians. Now each is taking their commitment to reform one step further.
Karen, who has more than 20 years’ experience working in the health and mental health sector as both a social worker and lawyer, is the principal lawyer at ADA Law, a community legal centre within Aged and Disability Advocacy Australia that helps more than 200 people each year with issues surrounding guardianship or enduring powers of attorney. Her research project will investigate decision-making support for people over 75 years as their health and accommodation situation changes, and what legislative protection and practical tools are required in NSW, Queensland and Victoria.
“An unplanned hospital admission often follows a traumatic event or sudden decline in health, and the next stage for many older Australians is respite or permanent residential aged care,” Karen said. “This step is often rushed, and decisions around entry into care made out of fear, ignorance or confusion. It needs to be better co-ordinated, to respect and support the choices of the older person themselves.
“Commonly people are assessed soon after their hospital admission and can be found to be lacking capacity, but that is often due to shock, infection or temporary delirium. Ours is a deficit model; enduring power of attorney can be activated before the individual’s mental capacity is given a chance to improve, which goes against the legal premise of presumption of capacity. Taking away their decision-making rights unnecessarily, prematurely or discriminatorily is a result of a power imbalance, and this amounts to elder abuse.”
In 2016, the Australian Institute of Family Studies (AIFS) estimated that 2-14% of Australians over 65 will experience elder abuse in any given year, but because it is largely a hidden problem, the “prevalence of neglect is possibly higher”. In 2021, AIFS reported it may be as high as 14.8%.
Sue knows firsthand how poorly most people understand the laws designed to protect older Australians, having practised as a lawyer for the past 20 years, taught elder law at university and conducted extensive community education. As part of her PhD-I she aims to produce practical resources for older people and to develop education modules, short courses or seminars for a range of stakeholders, including aged care providers and police officers, as well as those studying medicine, law, social work, finance or nursing.
“As we age, some legal aspects take on greater importance and mistakes made through knowledge deficits (on the part both of the layperson or the professional) or poor legal and financial advice can have catastrophic and irreversible effects on individuals and their families,” Sue said. “Structured education for students and professionals engaging with older clients and the community is long overdue.
“Elder law is not just confined to the older person; it brings in their grown-up children and even their children, who face becoming attorneys and/or enduring guardians, executing advance care directives and re-accommodating their parents and even grandparents.”
Research shows that adult children are the most common perpetrators of elder abuse and that financial abuse is the most prevalent kind of abuse.
“Inheritance impatience is very real and you can get a lot of abuse occurring through powers of attorney,” Sue said. “We commonly hear of adult children applying undue pressure to parents to help with a mortgage or house deposit, and with soaring house prices and predictions of interest rate rises, I expect it will get worse. Older people just don’t like to talk about it, because they are ashamed.”
Karen is also endeavouring to highlight shortcomings in our legal frameworks, but specifically as they apply to health and aged care settings. “I am concerned that urgent guardianship and administrative (Public Trustee) orders are being implemented in hospitals and aged care settings without the involvement of family members and that we are seeing financial mismanagement by some decision-makers,” she said. “Unlike the aged-care system, which is centralised and regulated by Commonwealth laws, guardianship systems (like healthcare) are subject to individual state and territory laws. It’s important to understand how this impacts the choices of older people.
“The Australian Law Reform Commission supports individual and supported decision-making that prioritises the views and preferences of the person who is or may be subject to guardianship. But there’s been little research into the intersection between healthcare and guardianship. The healthcare sector has also been accused of ageism, with a report last year uncovering links between age discrimination and compromised healthcare access and standards.
“Anyone in an ill-fitting gown, whether a billionaire or a homeless person, feels disempowered in a hospital. We should be leaning in to a supported decision-making approach rather than taking decisions away from people, unless it’s clear that – for whatever reason – that can’t happen.”
Ultimately, Karen hopes to improve understanding of the issues to better inform policy and integration between healthcare and aged care. “As a signatory to numerous United Nations conventions and covenants, Australia has a legal and moral obligation to ensure the highest quality of physical and mental health for older people,” she said. “It’s time we laid the scenarios out, reappraised them and hit reset.”
Sue is frustrated that elder abuse persists, despite a string of royal commissions into banking, aged care quality and safety, and disability. “The majority of recommendations don’t get picked up and nothing changes,” she said. “I am hoping to alert more people to the issues.
“Elder abuse forms part of what I am doing but the emphasis is on a much broader range of issues, such as mental capacity, substitute and supported decision-making, accommodation, financial matters and age discrimination as well.”
*UNE’s Doctor of Philosophy - Innovation (PhD.I) is a pathway to a doctoral degree that allows candidates to earn their doctorate from their workplace, without sacrificing academic rigour.
26 April 2022.