- 1. Introduction
- 2. What is elder abuse?
- 3. What is known about the prevalence and dynamics of elder abuse?
- 4. Australia's older population: Demography and health statistics
- 5. Socio-economic context and intergenerational wealth transfer
- 6. Structures, frameworks and organisation
- 7. Prevention approaches
- 8. What can we learn from international approaches?
- 9. Summary and discussion
6. Structures, frameworks and organisation
The discussion in this chapter will identify a range of intersecting frameworks and structures that potentially engage with elder abuse across a range of areas, laws and jurisdictions. Following an examination of the Commonwealth legislative and policy frameworks, examples from the range of state and territory frameworks will be considered, prior to an examination of financial systems focusing on measures encouraging financial literacy and protecting against financial abuse. The chapter will conclude with a brief discussion of a range of advice and advocacy services available through non-government organisations and community bodies that facilitate protection against, and response to, the perpetration of elder abuse.
6.1 Commonwealth legislative and policy frameworks
In spite of the “myth of an all-encompassing federal legal and policy dominance in the ageing portfolio" (Lacey, 2014, p. 101), the Commonwealth Parliament has limited sources of power with which to legislate specifically with respect to elderly Australians and aged care. The Commonwealth of Australia Constitution Act (the Constitution) contains the following heads of power which may provide a basis for the Commonwealth to legislate on matters for this population:
- s 51(xxiii): invalid and old-age pensions;
- s 51(xxiiiA): … widows' pensions … pharmaceutical, sickness and hospital benefits, medical and dental services …;
- s 51(xiii): banking…;
- s 51(xx): foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;
- s 51(xiii): banking …;
- s 51(xxix): external affairs; and
- s 51(xxxix): matters incidental to the execution of these powers.
Also of note in the context of potential authority to provide for elderly Australians are s 61 of the Constitution, which relates to the executive power of the Commonwealth, and s 96, which enables the Commonwealth Parliament to grant financial assistance to any state on such terms and conditions as the Parliament thinks fit.
While relevant, the provisions enumerated above do not specifically enable the Commonwealth to legislate or otherwise provide for protection against elder abuse. Nevertheless, s 61 and s 96, in addition to s 51(xxix) of the Constitution, have been identified as providing potential bases for the enactment of a national framework for protection against elder abuse, albeit that s 96 would authorise the funding of a scheme to be administered by the states and territories (Lacey, 2014, p. 103). In particular, the external affairs power in s 51(xxix) has been identified as holding the greatest prospect of enabling a human-rights-based approach to underpin a national protective framework, and this avenue will be discussed further below.
Current Commonwealth programs and legislation regulating aged care
While there is no comprehensive adult protection legislation at present in Australia, of particular relevance among the current legislative instruments in the Commonwealth jurisdiction is the Aged Care Act 1997 (Cth), which provides the regulatory framework for the provision of aged care.4 This Act, which is primarily based on the pensions/benefits power in s 51(xxiii) and on the corporations power in s 51(xx), governs both residential care and home care, making provision for the Commonwealth to provide financial support “through payment of subsidies for the provision of aged care" and “through payment of grants for other matters connected with the provision of aged care" (s 3-1(1)).
Commonwealth responsibility for the provision of aged care was recently expanded following the introduction of the National Partnership Agreement on Transitioning Responsibilities for Aged Care and Disability Services (Council of Australian Governments, 2012) and the Living Longer, Living Better program, which extended Commonwealth funding of home and community care (now “home care") support for elderly Australians and initiated program reform intended to provide improved service provision (Department of Social Services, 2013). As a result, from 1 July 2012, the Commonwealth Home and Community Care program (now the Commonwealth Home Support Programme) took on full funding, policy and operational responsibility for Australians in all states and territories aged 65 years and over (and Aboriginal and Torres Strait Islanders aged 50 years and older),5 save for Victorian and Western Australian older persons.6
The regulatory system in the Aged Care Act 1997 (Cth) provides for the accreditation of service providers, the imposition of obligations on these service providers and the establishment of the Aged Care Complaints Scheme.
More specifically, Division 54 of the Aged Care Act 1997 (Cth) makes provision for determination of quality care and accommodation standards. Part 4.1 makes provision for Quality of Care Principles (currently the Quality of Care Principles 2014), and s 54-4 indicates that such principles may include accreditation standards for the quality of care and quality of life for the provision of residential care and home care respectively. Section 55-2 provides for User Rights Principles to be made, with the relevant minister making these principles pursuant to s 96-1 (currently the User Rights Principles 2014, made by the Assistant Minister for Social Services). Schedule 1 of the current User Rights Principles provides the Charter of Care Recipients' Rights and Responsibilities - Residential Care, and Schedule 2 provides the Charter of Recipients' Rights and Responsibilities - Home Care. These Quality of Care Principles and User Rights Principles will be considered further in the next section in the context of a broader discussion of the Aged Care Principles made under the Aged Care Act 1997 (Cth).
Division 63 of Part 4.3 of the Aged Care Act 1997 (Cth) relates to accountability, and outlines the responsibilities of approved providers in this regard. Specifically, in relation to the protection of elder Australians from abuse, this division of the Act requires approved providers to report allegations or suspicions based on reasonable grounds of “reportable assaults"7 in residential care settings to the police and to the department. This mandatory reporting provision is limited to physical assault and does not extend to such abuse of the elderly receiving care outside federally funded aged care facilities (s 63-1AA(2)). For a discussion of mandatory reporting obligations more generally, see section 3.4. General responsibilities of approved providers of residential care (s 56-1) and of approved providers of home care (s 56-2) are also enumerated. These provisions relate to compliance with rules; fees to be charged for both residential and home care services; management of refundable deposits, accommodation bonds and entry contributions for residential care; provision of security of tenure with respect to residential care; compliance with complaints resolution requirements (s 56-4); and the obligation on the provider “not to act in a way which is inconsistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles" (s 56-1(m) and s 56-2(k)).
Part 4.4 of the Aged Care Act 1997 (Cth) outlines the consequences of non-compliance, with provisions relating to the nature and operation of sanctions. Section 65-1(a) provides that where an approved provider “has not complied, or is not complying, with one or more of its responsibilities under Part 4.1, 4.2 or 4.3", the secretary may impose a sanction if satisfied that it is appropriate to do so, and imposes this sanction in accordance with the procedures and requirements for imposing sanctions in Division 67. Section 67-1 in this division provides that unless the secretary is satisfied that the non-compliance gives rise to an immediate and severe risk to the safety, health or wellbeing of care recipients, sanctions must not be imposed unless the secretary has given the approved provider a notice of non-compliance, a notice of intention to impose sanctions or to remedy the non-compliance, and a notice of their decision regarding whether to impose sanctions. The sanctions that may be imposed include revocation, suspension or restriction of providers' approvals to provide aged care services; prohibition on charging or accrual of relevant fees or bonds; and such other sanctions enumerated in the Sanctions Principles.
Of particular note, s 53-2 provides that if an approved service provider fails to meet the responsibilities outlined in Chapter 4 of the Act (including under the User Rights Principles), such a failure does not give rise to an offence, and the failure has no consequence under any law other than the Aged Care Act unless the relevant act or omission “constitutes a breach of an obligation under another law". In her recent overview of applicable Australian law relevant to elder abuse, Lacey (2014) identified numerous shortfalls arising from this approach to sanctions, noting in particular that the Charters of Rights and Responsibilities (discussed further below) are not enforceable in their own right as there is no process within the legislation for individuals such as care recipients to seek remedies for breaches, save for the Aged Care Complaints Scheme (discussed below), with penalties relating to the implications for service providers' accreditation. In the event that elder abuse is identified, as captured by this Commonwealth framework, reliance on state and territory bodies (e.g., state and territory criminal justice systems) would nevertheless be required by way of implementation (Lacey, 2014).
As noted above, the Aged Care Act 1997 (Cth) also establishes the Aged Care Complaints Scheme (s 94A-1(1) and (2)) and the offices of the Aged Care Commissioner (Division 95A) and Aged Care Pricing Commissioner (Division 95B).
The Aged Care Complaints Scheme enables any person to report complaints about the quality of the care or service provided by an aged care service that is funded or subsidised by the Commonwealth. The scheme applies the Complaints Guidelines and they are resolved using a framework established in accordance with the Complaints Principles 2014. This involves consideration of whether the approved provider is meeting their responsibilities under all principles covered by the Aged Care Act 1997 (Cth), such as whether there has been a breach of any rights set out in the Charter of Care Recipients' Rights and Responsibilities - Residential Care and Home Care. The amended scheme has nevertheless been identified by some commentators as focusing on the resolution of complaints rather than the enforcement of the rights of care recipients (Barnett & Hayes, 2010; Lacey, 2014). The 2009 Walton review of the predecessor to the current complaints scheme had been critical of the scheme's lack of independence, being situated within the government department that administers aged care.8
The Aged Care Commissioner is a statutory appointment operating independently of the Accreditation Agency, the Aged Care Complaints Scheme and the department, with provisions made for the Commissioner to consider complaints about the operation of the Accreditation Agency or the Complaints Scheme, and more broadly to consider issues on their own initiative. The Commissioner's role includes examining the decisions of the Complaints Scheme, if necessary recommending that the scheme reconsider decisions, nominating matters to be included in the process, and developing measures to improve the complaint handling process. The Commissioner may also direct the Complaints Scheme to undertake a new complaints resolution process (see Part 6.6, Division 95A of the Aged Care Act 1997 (Cth)).
Section 63-2 of the Aged Care Act 1997 (Cth) requires the relevant minister to report to Parliament about the Aged Care Complaints Scheme, and the Aged Care Standards and Accreditation.
Commonwealth Aged Care Principles and other policies and best practice guidelines
Numerous Commonwealth Aged Care Principles guiding service provision have been made under s 96-1 of the Aged Care Act 1997 (Cth). Of these principles, the Quality of Care Principles, the Users Rights Principles and the Accountability Principles are of particular relevance. These Aged Care Principles, together with the Aged Care Determinations,9 are legislative instruments in accordance with the Legislative Instruments Act 2003 (Cth).
The Quality of Care Principles 2014 specify the Accreditation Standards (Schedule 2) and Home Care Common Standards (Schedule 4) to be met by residential care providers and home care providers respectively, as well as the care and services to be provided by these providers.
The User Rights Principles 2014 set out the responsibilities of approved providers in the provision of residential or home care services. These include describing the required content of agreements between approved providers and care recipients, and the information that approved providers are required to provide to care recipients, although notably, information about fee and charges were recently moved to the Fees and Payments Principles 2014 and the Aged Care (Transitional Provisions) Principles 2014. Importantly, Schedule 1 of the current User Rights Principles provides the Charter of Care Recipients' Rights and Responsibilities - Residential Care and Schedule 2 provides the Charter of Recipients' Rights and Responsibilities - Home Care. These charters are of particular relevance and are extracted in full in Box 1 and Box 2.
Box 1: Charter of Care Recipients' Rights and Responsibilities - Residential Care
Care recipients' rights - residential care
Each care recipient has the following rights:
(a) to full and effective use of his or her personal, civil, legal and consumer rights;
(b) to quality care appropriate to his or her needs;
(c) to full information about his or her own state of health and about available treatments;
(d) to be treated with dignity and respect, and to live without exploitation, abuse or neglect;
(e) to live without discrimination or victimisation, and without being obliged to feel grateful to those providing his or her care and accommodation;
(f) to personal privacy;
(g) to live in a safe, secure and homelike environment, and to move freely both within and outside the residential care service without undue restriction;
(h) to be treated and accepted as an individual, and to have his or her individual preferences taken into account and treated with respect;
(i) to continue his or her cultural and religious practices, and to keep the language of his or her choice, without discrimination;
(j) to select and maintain social and personal relationships with anyone else without fear, criticism or restriction;
(k) to freedom of speech;
(l) to maintain his or her personal independence;
(m) to accept personal responsibility for his or her own actions and choices, even though these may involve an element of risk, because the care recipient has the right to accept the risk and not to have the risk used as a ground for preventing or restricting his or her actions and choices;
(n) to maintain control over, and to continue making decisions about, the personal aspects of his or her daily life, financial affairs and possessions;
(o) to be involved in the activities, associations and friendships of his or her choice, both within and outside the residential care service;
(p) to have access to services and activities available generally in the community;
(q) to be consulted on, and to choose to have input into, decisions about the living arrangements of the residential care service;
(r) to have access to information about his or her rights, care, accommodation and any other information that relates to the care recipient personally;
(s) to complain and to take action to resolve disputes;
(t) to have access to advocates and other avenues of redress;
(u) to be free from reprisal, or a well-founded fear of reprisal, in any form for taking action to enforce his or her rights.
Source: User Rights Principles 2014, Schedule 1
Box 2: Charter of Care Recipients' Rights and Responsibilities - Home Care
Care recipients' rights - home care
(1) Each care recipient has the following rights:
(a) to be treated and accepted as an individual, and to have his or her individual preferences respected;
(b) to be treated with dignity, with his or her privacy respected;
(c) to receive care that is respectful of him or her, and his or her family and home;
(d) to receive care without being obliged to feel grateful to those providing the care;
(e) to full and effective use of all human, legal and consumer rights, including the right to freedom of speech regarding his or her care;
(f) to have access to advocates and other avenues of redress;
(g) to be treated without exploitation, abuse, discrimination, harassment or neglect.
(2) Each care recipient has the following rights:
(a) to be involved in identifying the home care most appropriate for his or her needs;
(b) to choose the care and services that best meet his or her assessed needs, from the home care able to be provided and within the limits of the resources available;
(c) to participate in making decisions that affect him or her;
(d) to have his or her representative participate in decisions relating to his or her care if he or she does not have capacity.
Care and services
(3) Each care recipient has the following rights:
(a) to receive reliable, coordinated, safe, quality care and services which are appropriate to his or her assessed needs;
(b) to be given before, or within 14 days after he or she commences receiving care, a written plan of the care and services that he or she expects to receive;
(c) to receive care and services as described in the plan that take account of his or her other care arrangements and cultural, linguistic and religious preferences;
(d) to ongoing review of the care and services he or she receives (both periodic and in response to changes in his or her personal circumstances), and modification of the care and services as required.
(4) Each care recipient has the following rights:
(a) to privacy and confidentiality of his or her personal information;
(b) to access his or her personal information.
(5) Each care recipient has the following rights:
(a) to be helped to understand any information he or she is given;
(b) to be given a copy of this Charter;
(c) to be offered a written agreement that includes all agreed matters;
(d) to choose a person to speak on his or her behalf for any purpose.
Comments and complaints
(6) Each care recipient has the following rights:
(a) to be given information on how to make comments and complaints about the care and services he or she receives;
(b) to complain about the care and services he or she receives, without fear of losing the care or being disadvantaged in any other way;
(c) to have complaints investigated fairly and confidentially, and to have appropriate steps taken to resolve issues of concern.
(7) Each care recipient has the following rights:
(a) to have his or her fees determined in a way that is transparent, accessible and fair;
(b) to receive invoices that are clear and in a format that is understandable;
(c) to have his or her fees reviewed periodically and on request when there are changes to his or her financial circumstances;
(d) not to be denied care and services because of his or her inability to pay a fee for reasons beyond his or her control.
Source: User Rights Principles 2014, Schedule 2
While the charters are laudable in their content, the Aged Care Act 1997 (Cth) has been described as “primarily intended to operate as a regulatory framework for the accreditation and monitoring of residential aged care facilities" (Lacey, 2014, p. 126). The relegation of the Charter of Rights to schedules rather than being in the body of the Aged Care Act 1997 (Cth) is emblematic of the “lack of priority given to those rights under the legislative framework" (Lacey, 2014, p. 125).
The Accountability Principles 2014 make provision for access to residential aged care facilities by the aged care certification assessors, the Aged Care Commissioner and the Australian Aged Care Quality Agency established by the Australian Aged Care Quality Agency Act 2013 (Cth). These principles also outline requirements in relation to police certificates prepared by the Australian Federal Police, CrimTrac or the police force or police service of a state or territory, for staff and volunteers, as well as the provision of information (including financial reports and information relating to service provision) by approved providers to the relevant secretary or minister. Notably, Part 7 of these principles outlines the circumstances in which the requirement to report allegations or suspicions of reportable assaults (described above) does not apply.
Other Aged Care Principles include the Approved Provider Principles 2014, which enumerate the matters that the secretary is required to consider when determining whether an applicant is suitable to provide aged care; the Allocation Principles 2014, which deal with the process for allocating aged care places to approved providers; the Approval of Care Recipients Principles 2014, which deal with the eligibility requirements for care recipients; and the Sanctions Principles 2014, which relate to the administration of sanctions.
The Commonwealth Government has also established and published an extensive array of policies and guidelines to facilitate best practice in the provision of aged care services.10 These include:
- guidelines about aged care assessments (e.g., Aged Care Assessment Programme Guidelines);
- best practice guides and user guides relating to fees and funding (e.g., Best Practice Guide to the Publication of Accommodation Prices);
- program, policy and law guides (e.g., the Home Care Standards Guide, the National Aged Care Advocacy Program Policy Guide and the Community Visitors Scheme Policy Guide 2013-2016); and
- quality and compliance statements and guides (e.g., the Compulsory Reporting Guidelines for Approved Providers of Residential Care, the Better Practice Guide to Complaint Handling in Aged Care Services, the Guidelines for the Aged Care Complaints Scheme, and the Guide to Aged Care Law).
In response to the current Commonwealth position, suggestions for reform have ranged from calls for the introduction of comprehensive adult protection legislation (e.g., Lacey, 2014; Office of the Public Advocate [OPA], & University of South Australia, 2011) to proposals for the reform of guardianship and related laws (e.g., Australian Law Reform Commission, 2014; Chesterman, 2013; Victorian Law Reform Commission, 2012), each of which will be discussed below.
International human rights treaties and the external affairs power
While important Commonwealth legislative measures have been outlined in the discussion in this chapter so far, these measures discussed are limited to elderly Australians accessing Commonwealth-funded services and do not enable comprehensive national legislation protecting against elder abuse. As noted earlier, the external affairs power in s 51(xxix) of the Constitution provides a potential basis for the enactment of a national framework for the protection of Australians against elder abuse.
International human rights laws that have been ratified by Australia to date - including, for example, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights - do extend to the protection of elder persons against abuse and neglect,11 and implied rights for the protection of the elderly have also been identified in seminal treaties, including the right to live free from abuse, exploitation and neglect. For example, the Universal Declaration of Human Rights 1947 enshrines a specific right to security for the elderly (Article 25(1)), but also, more generally, provides that all people are “born free and equal in dignity and rights".
Other relevant documents endorsed by Australia include non-binding international instruments such as the United Nations Principles for Older Persons, which specifies 18 rights covering the independence, participation, care, self-fulfilment and dignity of elderly people.12 Nevertheless, specific reference in treaties to the protection of the rights of the elderly has been uncommon to date, and concerns have been raised in relation to the “patchy and aspirational nature" of the relevant international human rights treaties and instruments (Lacey, 2014, pp. 103, 104 & 114).13
An international convention on the rights of older persons (currently under consideration by the UN General Assembly Open-ended Working Group on Ageing, 2015), if ratified, may provide broader scope to frame a national approach to protect against elder abuse, although practical if not legal implementation would necessarily involve cooperation with the state and territory governments (Lacey, 2014, pp. 103 & 122).
At a policy level, the international human rights instruments, together with the Age Discrimination Act 2004 (Cth), and the Office of the Age Discrimination Commissioner at the Australian Human Rights Commission, also serve to raise greater awareness of “the human rights implications of elder abuse, and to encourage the use of rights as the basis for all corrective policies and programs" (Ryan, 2015).
6.2 State/territory-based frameworks
At present, the states and territories have, to varying degrees, provided for the prevention of elder abuse through varying policies, practice guidelines, legislative frameworks, and different levels of coordinated interagency approaches (Lacey, 2014, pp. 102-103). The discussion in this section will focus on power-of-attorney and guardianship laws, following a discussion of examples of state/territory-based policy and practice guidelines, and concluding with a brief discussion of examples of state-based justice systems.
Health and aged care policy frameworks and practice guidelines
At present there exist a range of state/territory-based elder abuse response strategies, policies and practice guidelines that generally outline the various forms of elder abuse, how it can be identified, the action to be taken when elder abuse is suspected or identified, and the relevant services that can be approached for assistance. These policy frameworks and practice guidelines are detailed in Table 1.
|State/territory||Organisation/department||Policies and guidelines|
Source: Chesterman, (2015a), p. 2
|Victoria||Department of Health and Human Services||Elder Abuse Prevention and Response Guidelines for Action 2012-14 (2012); and With Respect to Age Practice Guidelines (2009)|
|South Australia||SA Health||Strategy for the Safeguarding of Older South Australians Action Plan 2014-21 (2015)|
|New South Wales||Department of Ageing, Disability and Home Care||Interagency Protocol for Responding to the Abuse of Older People (2007)|
|Tasmanian||Department of Health and Human Services||Responding to Elder Abuse: Tasmanian Government Practice Guidelines for Government and Non-Government Employees (2012)|
|ACT||ACT Government||ACT Elder Abuse Prevention Program Policy (2012)|
|Western Australia||Alliance for the Prevention of Elder Abuse||Elder Abuse Protocol: Guidelines for Action (2013)|
|Queensland||-||Strategy not publicly available, but note Elder Abuse website and Elder Abuse Prevention Unit (UnitingCare)|
These policy frameworks and practice guidelines vary in scope and detail, with some, such as Victoria's Elder Abuse Prevention and Response Guidelines for Action identified as a “high level guideline document aimed at encouraging sector collaboration and coordination", in contrast with the detailed protocols and practice guidelines released by New South Wales and Tasmania (Chesterman, 2015a, p. 2). Victoria had, however, previously established detailed practice guidelines described in With Respect to Age (2009), which provides guidance for health services and community agencies for the prevention of elder abuse with both “multi-sector and multi-discipline application".14
Despite the variability, key common limitations have been identified, including an emphasis on the vulnerability of victims of elder abuse, with responses where there is significant impairment involving the appointment of a substitute decision maker via a guardianship application across the various jurisdictions (e.g., Tasmania, New South Wales, Western Australia) (Chesterman, 2015a, pp. 3-4). A lack of emphasis on service improvement, the development of expertise, and facilitating collaborative practices have also been identified (Chesterman, 2015a, pp. 4-5). A lack of clarity around the relevant primary point of contact in cases of elder abuse has also emerged as a shortcoming, although the complexities associated with this were acknowledged in the New South Wales, South Australian and Tasmanian strategies, with varying agencies nominated to address particular issues (Chesterman, 2015a, p. 6). Notably, Chesterman argued that state/territory government policies and guidelines should be improved to provide greater priority to the views and best interests of the relevant person, and to identify lead agencies to be empowered to facilitate collaborative responses.
State/territory legislative frameworks
Each state and territory has its own laws in relation to powers of attorney and guardianship. By way of illustration, the discussion in this section will focus on provisions in Victoria, with a brief discussion of legislative arrangements in some other states and territories.
Following an Inquiry into Powers of Attorney by the Victorian Parliamentary Law Reform Committee, reforms were introduced in Victoria, which implemented many of the committee's recommendations. On 1 September 2015, the Powers of Attorney Act 2014 (Vic.) came into operation and introduced various elements aimed at preventing the misuse of enduring powers of attorney. These changes included:
- the simplification and consolidation of Victoria's power-of-attorney laws, such that the legislative provisions for enduring powers of attorney and enduring powers of guardianship were consolidated into a single enduring power of attorney, with powers for financial and/or personal affairs;15
- improvements in the legislative protections against abuse of enduring powers of attorney, including:
- the introduction of indictable offences of dishonestly obtaining or dishonestly using an enduring power of attorney, with penalties of up to five years' imprisonment (s 135 and s 137);
- setting out more clearly the duties of enduring attorneys in the legislation and including the duty to act honestly, diligently and in good faith, and to exercise reasonable skill and care (s 63-s 70);
- the introduction of a new definition of decision-making capacity and guidance about how to assess decision-making capacity, with s 4(2) clearly stating that a person is presumed to have decision-making capacity unless there is evidence to the contrary;
- the inclusion of principles to better guide decision-making, including that decisions are to be made in a manner that is least restrictive, with the attorney to ensure that the principal is provided with “practicable and appropriate support" to enable their participation in decisions affecting them to the extent possible, and with the attorney required to give effect to the principal's wishes, encourage participation in decision making and promote the principal's social and personal wellbeing (s 21);
- the extension of the power of the Victorian Civil and Administrative Tribunal (VCAT), including to order compensation (s 71-s 72; s 77-s 80);
- the introduction of new provisions prohibiting conflict-of-interest transactions, unless authorised or ratified by the principal or VCAT (s 64-s 65), and provisions regulating an enduring power of attorney's ability to give gifts from the principal's property (s 67);
- the introduction of more stringent execution requirements for the making or revocation of enduring powers of attorney (s 23; s 32-s 36; s 44-s 50); and
- a new amendment to create the role of supportive attorney, which enables (Part 7 of the Act):
- a principal to appoint a person to support them in making and giving effect to certain or all of their own decisions, while still retaining their own decision-making authority (the first provision for a supportive attorney in Australia); and
- the supportive attorney to be authorised to communicate or assist the principal to communicate supported decisions, and to do such things as are required to give effect to supported decisions (other than decisions regarding significant financial transactions), but may not make decisions on behalf of the principal.
The Victorian Guardianship and Administration Act 1986 (Vic.), was introduced to provide for substitute decision making where people with disabilities are unable to make legal and financial decisions (administrator), or personal decisions such as those relating to medicine and housing (guardian). The Victorian Office of the Public Advocate (OPA) is Victoria's “adult guardian of last resort", with statutory duties to “protect and promote the rights of people with disabilities" (Chesterman, 2015b, p. 1). Public advocates or adult guardians may be appointed as guardians or substitute decision makers where the principal lacks capacity, or appointed to investigate complaints or allegations relating to the abuse, neglect or exploitation of a principal by an attorney, guardian or administrator. The Victorian OPA undertakes a variety of tasks pursuant to the Guardianship and Administration Act 1986 (Vic.), including to investigate “complaint(s) or allegation(s) that a person is under inappropriate guardianship, or is being exploited or abused or in need of guardianship". The OPA hosts five volunteer programs and also plays an important educative role in relation to powers of attorney (Chesterman, 2015b, pp. 1-2), providing access to relevant publications and hosting the new online forms introduced by the legislative amendments. Other important legislation and agencies in Victoria include the Disability Act 2006 (Vic.) and the Disability Services Commissioner, the Ombudsman Act 1973 (Vic.) and the Victorian Ombudsman. The Chief Psychiatrist and the Health Services Commissioner may also play an investigatory role in the Victorian context, and the Aged Care Assessment Service and Department of Health and Human Services Intake and Response service may also identify elder abuse when investigating a person's eligibility to access services, although this is not their primary role (Chesterman, 2013, p. 23).
Some aspects of the Victorian approach to guardianship legislation have been reflected across other states and territories, and each now have guardians of last resort in the form of OPAs in South Australia, ACT, Western Australia; Public Guardians in New South Wales and Tasmania; and an Adult Guardian in Queensland. The investigative powers of these OPAs do, however, vary (Chesterman, 2013, p. 72) and variations in guardianship practices have given rise to calls for greater involvement by the Commonwealth in state and territory guardianship systems, including calls for the development of national guardianship principles (Chesterman, 2013, p. 35). In Queensland, the Communities, Disability Services and Domestic and Family Violence Prevention Committee inquiring into the adequacy of existing financial protections for Queensland's seniors recommended the adoption of strategies to regulate and record the appointment of attorneys, to amend the Powers of Attorney Act 1998 (Qld) to require attorneys to demonstrate knowledge of attorneys' duties and responsibilities prior to their appointment, and to amend the Public Trustee Act 1978 (Qld) to enable the Public Trustee to investigate and prosecute attorneys where there is evidence of financial abuse (Communities, Disability Services and Domestic and Family Violence Prevention Committee, 2015, p. 147). Also of note in relation to powers of attorney, the Advance Care Directives Act 2013 (SA) was amended to enable South Australians, from 1 July 2014, to better protect their interests by appointing a substitute decision maker.
Potential responses to instances of elder abuse via the legal system more generally may involve criminal proceedings for fraud pursuant to state or territory criminal law (see directly below), or the pursuit of remedies through civil law (e.g., contracts or torts) or in equity, including claims for breach of fiduciary duty, unconscionable conduct or undue influence. However, civil law or equity may not capture relevant aspects of elder abuse, such action may be expensive and time consuming to pursue, and it may require the appointment of a litigation guardian, which for financial and other reasons may limit access to legal remedies for elderly victims of abuse (OPA (Qld) & Queensland Law Society, 2010). In some jurisdictions there may also be restrictions in relation to the damages that may be sought (OPA (Qld) & Queensland Law Society, 2010). Indeed, Wainer, Darzins and Owada (2010) observed that the legal system is rarely invoked by the elderly in response to abuse.
Criminal justice system
Various forms of elder abuse, including physical violence and financial abuse, may constitute crimes under state and territory law, and include offences such as assault, theft and obtaining property by deception. However, these criminal offences can be difficult to identify because they are often perpetrated in the context of relationships where the opportunity exists for coercion and where evidence of wrongdoing may be weak, even in circumstances where victims feel able to initiate or facilitate police investigations in the context of a relationship of dependence (Chesterman, 2015a; OPA (Qld) & Queensland Law Society, 2010). Also, the primary goal of the criminal justice system is the prosecution of the perpetrator rather than the facilitation of a remedy for the victim, although crimes compensation may be available. In relation to financial abuse more specifically, the criminal justice system's response to the perpetration of fraud, and in particular online fraud, is an issue commanding increased attention at present. The Communities, Disability Services and Domestic and Family Violence Prevention Committee, in their report from their inquiry into the adequacy of existing financial protections for Queensland's seniors, identified the potential failure to identify this financial exploitation as a crime. They nominated feelings of shame and embarrassment as factors contributing to high levels of underreporting, with federal and state-based police services able to offer only limited assistance where the fraud is undertaken by an overseas-based offender, due to investigatory and enforcement challenges. Training of police and consumer protection agencies was also a measure identified as enabling “empathetic and appropriate service responses" (Communities, Disability Services and Domestic and Family Violence Prevention Committee, 2015, pp. 101, 103).
Laws relating to family violence also offer potential protection for vulnerable elderly people. For example, s 5 of the Family Violence Protection Act 2008 (Vic.) provides an expansive definition of family violence, including economic abuse (Box 3). Section 8 of the Act provides that a family member for the purposes of this Act includes spouses, domestic partners, persons in intimate personal relationships, and relatives, but may also include persons “regarded as being like a family member if it is or was reasonable to regard the other person as being like a family member having regard to the circumstances of the relationship" (Box 3). Section 8(3) references a broad range of circumstances to consider when assessing family relationships, and also provides the example where a person with a disability and their carer “may over time have come to approximate the type of relationship that would exist between family members". There are provisions made for family violence safety notices (ss 24-39) and family violence intervention orders (Part 4), both of which may include conditions for exclusion from the residence (s 81 and s 82). Relevant legislation in other states and territories include the Domestic and Family Violence Protection Act 2012 (Qld); Crimes (Domestic and Personal Violence) Act 2007 (NSW); Intervention Orders (Prevention of Abuse) Act 2009 (SA); Restraining Orders Act 1997 (WA); Family Violence Act 2004 (Tas); Domestic Violence and Protection Orders Act 2008 (ACT) and Domestic and Family Violence Act 2007 (NT).
Box 3: Family Violence Protection Act 2008 (Vic.)
Meaning of family violence
(1) For the purposes of this Act, family violence is -
(a) behaviour by a person towards a family member of that person if that behaviour -
(i) is physically or sexually abusive; or
(ii) is emotionally or psychologically abusive; or
(iii) is economically abusive; or
(iv) is threatening; or
(v) is coercive; or
(vi) in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; or
(b) behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a).
The following behaviour may constitute a child hearing, witnessing or otherwise being exposed to the effects of behaviour referred to in paragraph (a) -
- overhearing threats of physical abuse by one family member towards another family member;
- seeing or hearing an assault of a family member by another family member;
- comforting or providing assistance to a family member who has been physically abused by another family member;
- cleaning up a site after a family member has intentionally damaged another family member's property;
- being present when police officers attend an incident involving physical abuse of a family member by another family member.
(2) Without limiting subsection (1), “family violence" includes the following behaviour -
(a) assaulting or causing personal injury to a family member or threatening to do so;
(b) sexually assaulting a family member or engaging in another form of sexually coercive behaviour or threatening to engage in such behaviour;
(c) intentionally damaging a family member's property, or threatening to do so;
(d) unlawfully depriving a family member of the family member's liberty, or threatening to do so;
(e) causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the family member to whom the behaviour is directed so as to control, dominate or coerce the family member.
(3) To remove doubt, it is declared that behaviour may constitute family violence even if the behaviour would not constitute a criminal offence.
Meaning of family member
(1) For the purposes of this Act, a “family member", in relation to a person (a “relevant person"), means -
(a) a person who is, or has been, the relevant person's spouse or domestic partner; or
(b) a person who has, or has had, an intimate personal relationship with the relevant person; or
(c) a person who is, or has been, a relative of the relevant person; or
(d) a child who normally or regularly resides with the relevant person or has previously resided with the relevant person on a normal or regular basis; or
(e) a child of a person who has, or has had, an intimate personal relationship with the relevant person.
(2) For the purposes of subsections (1)(b) and (1)(e), a relationship may be an intimate personal relationship whether or not it is sexual in nature.
(3) For the purposes of this Act, a “family member" of a person (the “relevant person") also includes any other person whom the relevant person regards or regarded as being like a family member if it is or was reasonable to regard the other person as being like a family member having regard to the circumstances of the relationship, including the following -
(a) the nature of the social and emotional ties between the relevant person and the other person;
(b) whether the relevant person and the other person live together or relate together in a home environment;
(c) the reputation of the relationship as being like family in the relevant person's and the other person's community;
(d) the cultural recognition of the relationship as being like family in the relevant person's or other person's community;
(e) the duration of the relationship between the relevant person and the other person and the frequency of contact;
(f) any financial dependence or interdependence between the relevant person or other person;
(g) any other form of dependence or interdependence between the relevant person and the other person;
(h) the provision of any responsibility or care, whether paid or unpaid, between the relevant person and the other person;
(i) the provision of sustenance or support between the relevant person and the other person.
A relationship between a person with a disability and the person's carer may over time have come to approximate the type of relationship that would exist between family members.
(4) For the purposes of subsection (3), in deciding whether a person is a family member of a relevant person the relationship between the persons must be considered in its entirety.
6.3 Financial systems: Measures encouraging financial literacy and protecting against financial abuse
Measures encouraging financial literacy
The Australian Securities and Investments Commission (ASIC) regulates financial advice and financial products and has national responsibility for coordinating financial literacy among Australians. To this end, ASIC's (2014) National Financial Literacy Strategy (currently 2014-17) identifies the importance of improving financial literacy and financial wellbeing via informed financial decision-making, including those financial decisions that are made at retirement and in old age.
The National Financial Literacy Strategy highlights programs that are aimed at building financial literacy, and nominates Australians aged 65 years and over as a key target audience, with this group identified as being “least likely to consult a range of information sources to stay informed" and as having “gaps in their knowledge and engagement and declining cognitive skills" (ASIC, 2014, p. 23; ASIC, 2015, p. 7). This vulnerability is reflected in recent research, such as Earl, Gerrans, Asher and Woodside's (2015) quantitative and qualitative study of the relationship between financial literacy, financial judgement and retirement self-efficacy, which identified a link between cognitive functioning and financial judgement. Participants in their study had relatively high levels of financial literacy, scoring well on general mental ability and lower on self-rated symptoms of dementia.
Of particular relevance to the improvement of financial literacy among older people is ASIC's MoneySmart program, which provides free and impartial literacy tools and resources, including guidance in relation to seeking financial advice, and accessible information to assist with financial decision making, such as retirement planning and budgeting (ASIC, 2015, p. 9). MoneySmart provides access to online calculators, including a budget planner, a superannuation and pension age calculator, an account-based pension calculator, a reverse mortgage calculator and a retirement planner (ASIC, 2015, p. 9). MoneySmart also provides access to a wide range of online content, such as information about choosing a financial advisor, together with access to a suite of MoneySmart publications. For example, Financial Decisions at Retirement: How to Make the Most of Your Money and Avoid Costly Mistakes, is a MoneySmart publication that provides guidance about the funds required for retirement, available entitlements, information about withdrawing superannuation, and options dealing with these funds and income stream choices, as well as alerts to potential risks associated with investment decisions. ASIC also consults regularly and widely with government, community and not-for-profit agencies to facilitate access to their educative and guidance materials (ASIC, 2015, p. 13). The National Information Centre on Retirement Investments is also able to provide older Australians with general financial advice, and Centrelink's Financial Information Service provides information about the receipt of pensions and benefits, and the effects on such payments of the receipt of income or the gifting of financial assistance.
In relation to financial literacy, the Queensland Disability Services and Domestic and Family Violence Prevention Committee's (2015) report recommended that the Queensland Government investigate the establishment of a dedicated, 24-hour financial advice helpline, reinstate funding for financial counselling, and “investigate ways to better facilitate vulnerable seniors' access to, and uptake of, free and independent financial advice" (p. 90). It recommended that the Queensland and Commonwealth governments work together to explore options to reduce complexity in aged care contracts and to educate consumers about reasonable charges for aged care services (p. 90).
While important, “financial literacy is not a panacea" (ASIC, 2015, p. 14). ASIC has emphasised that a strong, regulatory framework - including legislative mechanisms such as the Future of Financial Advice reform package,16 the national regulatory regime for consumer credit,17 and dispute resolution mechanisms for clients dealing with financial institutions, as well as non-legislative codes of conduct - is required to protect against financial abuse. Measures specifically relevant to the prevention of financial abuse of the elderly are considered directly below.
Measures protecting against financial abuse of the elderly
As discussed earlier, financial abuse takes many and varied forms. It may include exerting pressure to transfer funds or other assets, taking out or guaranteeing loans to the benefit of others, or not acting in the best interests of the relevant elderly persons when authorised to manage funds or other assets on their behalf.
Information and advocacy services available in each state and territory aim to educate elderly people about the varied forms of financial abuse and the steps that can be taken to protect against such abuse. For example, groups such as Seniors Rights Victoria and the Elder Abuse Prevention Unit, Queensland (see below) provide relevant legal, education and advocacy services. Information to support awareness about scams relating to investments, superannuation, banking, credit, lotteries or dating, and identity theft is provided by groups such as the ASIC Scamwatch information centre, and are an important means of protecting elderly Australians against such scams.
The financial institution sector in Australia also provides information about the nature of financial abuse and means of protection against such abuse, together with industry guidelines facilitating financial institutions to both prevent and identify financial abuse among their clients. For example, the Australian Bankers Association (ABA)18 has developed the following tools to facilitate both the prevention and identification of elder abuse in the financial institution context:
- Protecting Vulnerable Customers From Potential Financial Abuse - guidelines for the banking industry, outlining the indicators of financial abuse and how it may “impact customers and banks' relationships with their customers", together with a framework to enable banks to “raise awareness and promote consistent arrangements to deal with suspected cases of financial abuse" (ABA, 2014a, p. 1).
- Protecting Yourself From Financial Abuse - a consumer fact sheet to raise awareness about the nature and consequences of financial abuse and measures that can be taken to protect against such abuse (ABA, 2014b).
- Responding to Requests From a Power of Attorney or Court-Appointed Administrator - a guideline to industry outlining “how powers of attorney and court-appointed administrators arrangements apply to banks' relationships with their customers" and providing a framework that banks can use to consistently deal with requests from attorneys and administrators (ABA, 2014c, p. 1)
- Setting up a Power of Attorney to Help Manage Your Banking Needs - a consumer fact sheet providing information about powers of attorneys and the circumstances in which it may be appropriate to appoint one to manage financial and legal issues (ABA, 2014d).
While the above industry guidelines are voluntary, they were “developed with input from, and agreed to by, member banks" and the ABA encourages member banks to adhere to them and to incorporate them into their internal policies, processes and procedures (ABA, email communication, 30 November 2015).
In addition, Capacity Australia (a not-for-profit charity), with the support of the ABA, has devised an online education and assessment tool that bank staff can use to identify financial abuse or the risk of financial abuse, and respond appropriately (ABA, email communication, 30 November 2015). This online tool was introduced following its trial with the Commonwealth Bank of Australia and the National Australia Bank. Financial institutions also provide regular staff training, with an emphasis on escalating customer issues and concerns to those with appropriate authority, including hardship teams who are likely to have received specialist training with regard to the identification of financial abuse and implementing appropriate measures to raise concerns with clients (ABA, email communication, 30 November 2015). The Cognitive Decline Partnership Centre recently published a report recommending thorough training and ongoing education for senior managers through to frontline staff about cognitive decline, and how to deal with clients with dementia, their attorneys and agents (Field, Matkovic, & Bhatia, 2015, p. 6).
From the perspective of financial institutions, formal arrangements are preferred as they provide clear instructions to the relevant bank and are directed at eliminating the client's exposure to financial risk (ABA, email communication, 30 November 2015). When managing and responding to instances, or potential instances, of financial abuse, institutions are required to be particularly mindful not to breach their obligations pursuant to privacy laws, to respect the autonomy of their clients, and not to discriminate against clients based on their age or disability (ABA, email communication, 30 November 2015). These considerations can be difficult to balance where there are concerns, for example, about the exertion of undue influence, as the bank must act on their clients' instructions and “must assume that a customer can transact until a point to which the law, and medical profession, say this is not the case" (ABA, email communication, 30 November 2015). Complexities may also arise where the suspected or actual financial abuse is perpetrated by someone who has the legal authority to make decisions on behalf of the elderly client, particularly given the importance of not undermining the trust that an elderly client has in an agent who is “acting in good faith and in their best interests" (ABA, email communication, 30 November 2015) and to this end, measures to facilitate supported decision-making rather than substituted decision-making may be preferred. These measures include two-to-sign, co-signatory and linked accounts, clients obtaining independent legal advice prior to applying for various lending products (ABA, email communication, 30 November 2015). Field et al. (2015) also recommended that financial institutions require clients to produce valid enduring powers of attorney when authorising third party signatories or co-signatories, as well as tighter online banking restrictions for attorneys accessing their principals' accounts (pp. 6-7).
Where substituted decision-making arrangements are in place, financial institutions generally require these arrangements to be noted on the client's file and the institution's database, and the relevant instruments are usually required to be registered where property transactions are taking place (ABA, email communication, 30 November 2015). The ABA and Field et al. (2015) indicated that uniform national legislation regarding attorneys, agents and administrators, and a national register of relevant instruments would “reduce regulatory and administrative complexity", with varying state and territory laws at present giving rise to confusion and delay, which in turn may expose elderly clients to financial abuse if appropriate safeguards are not in place, or to financial loss if arrangements are not established in a timely manner (ABA, email communication, 30 November 2015; see also Field et al., 2015, p. 5-6).
Collaborative approaches are also recommended, with the Queensland Disability Services and Domestic and Family Violence Prevention Committee (2015), for example, recommending that the state government continue to work together with the Commonwealth Government and enforcement agencies to “promote responsible lending and other ethical business practices to better safeguard the interests and assets of vulnerable seniors", to develop more formal protocols for financial institutions with regard to elder abuse, including options for financial reporting, and to create options to improve remedies and compensation for victims of financial elder abuse (pp. 114, 172, 156).
6.4 Non-government service provision and advocacy
Independent and confidential advocacy services are available free of charge to care recipients in each state and territory. These advocates may provide information about care recipients' rights and responsibilities, listen to their concerns, assist in the resolution of issues or complaints raised in relation to aged care service providers, liaise directly with these service providers and may also refer care recipients to other relevant agencies where appropriate (Department of Social Services, 2015).19 A 1800 National Aged Care Advocacy helpline is also available in addition to the state/territory-based advocacy services.
Other consumer groups and community organisations, such as COTA and National Seniors Australia, as well as informal alliances are essential to effective aged care advocacy and for monitoring the implementation and review of aged care service provision. At a state and territory level, a broad range of services have been established. For example, since 2008, Seniors Rights Victoria has been funded by the Victorian Government to provide information, legal and other advice, and short-term support and advocacy, as well as referrals for those experiencing elder abuse in Victoria. Its services include a free and confidential helpline and an online e-learning portal for professionals, and extend to performing educative and policy and law reform roles. For example, its online Elder Abuse Tool Kit provides guidance about facilitating older people to make their own decisions, how to work respectfully with older people, and how to enable them to receive the services that they need, including working respectfully with older gay, lesbian, bisexual, transgender and intersex people. Similar agencies in other states and territories specialise in providing information and advocacy services aimed at preventing elder abuse. These include the Queensland Seniors Legal and Support Service and the Queensland Elder Abuse Prevention Unit, the Aged Rights Advocacy Service in South Australia, Advocare in Western Australia, Tasmanian Elder Abuse Helpline and Advocacy Tasmania, Aged and Disability Rights Team, Darwin Community Legal Centre, the Older Persons Abuse Prevention Referral and Information Line and the New South Wales Aged Rights Service and the New South Wales Elder Abuse Helpline and Older Person's Legal Service.
In addition to the Centrelink Financial Information Service (noted at 6.3) provided through the Department of Human Services, advisory services in relation to social security entitlements for seniors are also available in each state and territory, including Social Security Rights Victoria, Adelaide Welfare Rights Centre, Welfare Rights Centre Sydney, Welfare Rights Centre Brisbane, Welfare Rights and Advocacy Service Western Australia, Social Security and Tenant's Advice Line, Welfare Rights and Legal Centre ACT, and the Darwin and Hobart Community Legal Services.
The discussion in this section has identified the legal complexities associated with current measures for the protection of elder Australians against abuse. Commentators (including Barnett & Hayes, 2010; Chesterman, 2015a; Field et al., 2015; Lacey 2014), have identified shortcomings associated with legal avenues and policy responses as well as current levels of coordinated interagency approaches. Calls for the introduction of a comprehensive, national approach to elder abuse and for leadership to be shown in this area have been made (Chesterman, 2015a). More specifically, Chesterman has suggested that the best way to promote leadership in this sector would be through the introduction of standalone elder abuse prevention and response units to be established within key state/territory departments (Chesterman, 2015a, p. 7).
4 Anti-discrimination legislation [in the Commonwealth jurisdiction the Age Discrimination Act 2004 (Cth)] may be identified as providing some protection against discrimination on the basis of age, whereby the Australian Human Rights Commission may investigate complaints and attempt conciliation. However, limitations associated with the definition of human rights and enforcement have been identified in relation to this avenue, with the underuse of this legislation in part linked to the restrictive definitions (Barnett & Hayes, 2010, p. 73-74).
5 As of 1 July 2015, the Home and Community Care Programme, the National Respite for Carers Programme, Day Therapy Centres and the Assistance with Care and Housing for the Aged, together became known as the Commonwealth Home Support Programme. See the program website at: <www.myagedcare.gov.au/aged-care-services/commonwealth-home-support-programme> for more information.
6 In May and August 2013, the Victorian and Western Australian Governments each agreed to transfer responsibility (Victoria) or to commence negotiations to transfer responsibility (Western Australia) for the provision of these services to the Commonwealth.
7 Section 63-1AA(9) of the Aged Care Act 1997 (Cth) defines a reportable assault as “unlawful sexual contact, unreasonable use of force, or assault specified in the Accountability Principles (currently the Accountability Principles 2014) and constituting an offence against a law of the Commonwealth or a State or Territory, that is inflicted on a person when: (a) the person is receiving residential care in respect of which the provider is approved; and (b) either (i) subsidy is payable for provision of the care to the person; or (ii) the person is approved under Part 2.3 as the recipient of that type of residential care".
8 See the Department of Social Services web pages: Aged Care Complaints Scheme <agecarecomplaints/govspace.gov.au/about-us/about-the-scheme/#.VjAuDenF85Q>; Commonwealth Home Support Programme <www.myagedcare.gov.au/aged-care-services/commonwealth-home-support-programme>; and Commonwealth guides, advice and policies <www.dss.gov.au/our-responsibilities/ageing-and-aged-care/publications-articles/guides-advice-policy>.
9 The Aged Care Determinations primarily relate to the calculation of subsidies and supplements.
10 See the list of Commonwealth guides, advice and policies at: <www.dss.gov.au/our-responsibilities/ageing-and-aged-care/publications-articles/guides-advice-policy>.
11 Note also the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of Persons With Disabilities, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
12 Lacey (2014) noted, though, that the aspirational nature of the 1991 United Nations Principles for Older Persons does not enshrine legally enforceable rights to the benefit of the elderly (p. 115). These 18 principles were adopted by General Assembly resolution 46/91 of 16 December 1991.
13 Lacey (2014) noted the examples of the Office of the High Commission for Human Rights (2012) Normative Standards in International Human Rights Law in Relation to Older Persons: Analytical Outcome Paper, the Migrant Workers Convention, and the Convention on the Rights of Persons with Disabilities, which refers specifically to age.
14 See the Preventing Elder Abuse web page: <www2.health.vic.gov.au/ageing-and-aged-care/wellbeing-and-participation/preventing-elder-abuse>.
15 Note that enduring powers of attorney and guardianship made prior to 1 September 2015 remain valid.
16 Corporations Amendment (Future of Financial Advice) Act 2012 (Cth) and the Corporations Amendment (Further Future of Financial Advice Measures) Act 2012 (Cth).
17 National Consumer Credit Protection Act 2009 (Cth).
18 The ABA provides advice, analysis and advocacy for the banking industry.
19 See <www.myagedcare.gov.au/how-make-complaint/advocacy-services> for details of the advocacy services in each state and territory.