The Power of Attorney and abuse of the elderly

Australia has a long way to go and COVID is lifting the scab revealing how neglect and absolute indifference have exposed these communities of older people to an end of life nightmare.

The interim report from the Australian Royal Commission into Aged Care, Quality and Safety titled ‘A Shocking Tale of Neglect’ pulls no punches in its description of the system of Age Care in Australia.

A ‘Catch 22’ is a dilemma from which there is no escape because of mutually conflicting conditions. The term, made famous in 1961, by Joseph Heller in his bitterly funny satire set in World War 11, was the story of a bombardier named Yossarian,  who could never complete his flying missions because of a bureaucratic rule: a man is considered insane if he willingly continues to fly dangerous combat missions, but if he makes a formal request to be removed from duty, he is proven sane and therefore ineligible to be removed.

Deciding to grant an enduring Power of Attorney can be a Catch 22: we are prudent to sign one, given the hazards of old age, but increasing anecdotal evidence is showing we can be putting ourselves at risk from abusive and arbitrary decisions by the Attorney(s).

An enduring power of attorney is a legal document whereby you (the Principal), grant legal authority to someone else (such as a relative or friend) to make decisions for particular purposes on your behalf and in your best interests. It can be for financial matters, medical matters, personal matters or ‘to do anything on your behalf.’ There is no consistency in these documents across the states and territories, they are not well understood, their impact is unexamined and anecdotal evidence is piling up showing they can be used as a major enabler of elder abuse.

Elder abuse has been defined by the World Health Organisation 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’. Such abuse can take various forms, including financial, physical, psychological, emotional, and sexual abuse.

Financial abuse, possibly the most easily substantiated form of abuse  is increasingly common as a Power of Attorney is well positioned to control and manipulate assets and property belonging to  a principal, to delve into bank accounts to serve their own interests and if one sibling is holding the Attorney he or she has the clout and control over assets including bank accounts. Families have gone to war over the contents of the backyard shed.

Australia’s Age Discrimination Commissioner, The Hon. Dr Kay Patterson AO has called on the state and territory Attorney-Generals to act urgently to implement the Australian Law Reform Commission’s recommendations on powers of attorney at the COAG meeting July 27. She argues current rules for powers of attorney which differ from state to state cause confusion within families, within aged care facilities and among experts across jurisdictions.

COVID 19 has lifted a scab concealing the dysfunction in aged care facilities including elder abuse in its multiple forms. Financial hardship stemming from the pandemic has led to increasing cases revealed through lawyers, peak bodies and frontline workers of older people having their money misused or stolen by the people meant to be helping them manage their finances. There is growing evidence such abuse is often occurring within families.

If someone has their faculties there is Elder Rights Advocacy group (era@asn.au) to appeal to if they are feeling pressured to make decisions you don’t want to make, wanting information or support. But what of those who are unable to speak on their own behalf? Harmonising powers of attorney would enable a national education campaign to inform those making a power of attorney and those appointed about their responsibilities.

While evidence of financial abuse may be easier to ascertain, emotional or psychological abuse is well hidden and anyone attempting to expose such practices must follow a complex maze of legal apparatus with no clear exit.

We decided to test the system when a friend who was a regular visitor to Patricia’s sister, who suffered from dementia and was in an aged care facility, was abruptly and arbitrarily ordered out, mid visit, when she believed loving interaction was occurring. Next day two more  friends were denied access. Enquiries revealed these actions by the care provider occurred on the order of the Attorneys who wanted to block access of someone else so denied all access.

Global research indicates the critical importance to the well being of an individual in care to continued engagement with loving friends and family. There was no consideration of the fact that the interaction they interrupted was actively enjoyed by the resident or that the action reversed a long-standing norm of best practice by the residence.

We approached Office of the Public Advocate and The Victorian Equal Opportunity and Human Rights Commission (‘the Commission’) to see if the general principle of the duty of care of aged care facilities could be investigated and clarified. The Commission stated it was not their role to advocate nor provide legal advice.

Their role includes educating, reporting, reviewing and intervention functions under the Charter.  If a person believes there has been a breach of their human rights under the Charter, and wishes to make a complaint committed by a “public authority” (such as a Local Council, a State Government Department or Statutory Authority), they can contact the Victorian Ombudsman who can investigate complaints about administrative actions and decisions made by government authorities.

The Public Advocate of Victoria also could not take up the issue and suggested an approach to the Victorian Administrative Appeals Tribunal (VCAT). That organisation’s  application for Order lists the categories they respond to  relevant to any submission which include ‘Declare whether an enduring power of attorney is valid’ and ‘Give advice about an enduring power of attorney’ but when the application asked whether a care facility could arbitrarily deny access to visitors they ruled that an enduring power of attorney gave that authority and would make no comment on the role of the Aged Care facility in such a circumstance.

As we are living so much longer and medical science is keeping us alive with multiple co-morbidities, including dementia, there is no question we do need support and care in older age.  We need the protection and advocacy of a trusted child or friend who will stand up for our rights, our dignity, our mental and physical well-being and protect us from neglect especially in aged care.

The interim report from the Australian Royal Commission into Aged Care, Quality and Safety  titled A Shocking Tale of Neglect pulls no punches in its description of the system of Age Care in Australia, calling it ‘unsafe and uncaring’ ‘cruel and harmful’, ‘poorly managed’, lacking ‘transparency and accountability’ with older people ‘left isolated and powerless’. The Report documents hideous examples of neglect: inadequate management of wounds, poor continence management, malnutrition, assaults by staff, widespread over medication, patchy palliative care with residents dying in distress.

No one looks forward to going into ‘an old-folks- home’, and when faced with no option, approach their future with dread and often subsequent trauma. An individual’s contribution and hard work throughout life can lead to an end that is joyless, bereft of purpose and unsafe. It is the proverbial scrap heap so choosing an Attorney is a prudent choice.

Yet there is a problem?  It is a hidden problem in our society as those who sign usually are not able to complain when things go wrong, even if they understand what is happening. And our system does not acknowledge there is any problem.

The Report includes 43 recommendations for law reform. The overall effect will be to safeguard older people from abuse and support their choices and wishes through:

  • improved responses to elder abuse in residential aged care;
  • enhanced employment screening of care workers;
  • greater scrutiny regarding the use of restrictive practices in aged care;
  • building trust and confidence in enduring documents as important advanced planning tools;
  • protecting older people when ‘assets for care’ arrangements go wrong;
  • banks and financial institutions protecting vulnerable customers from abuse;
  • better succession planning across the self-managed superannuation sector;
  • adult safeguarding regimes protecting and supporting at-risk adults.

Australia has a long way to go and COVID is lifting the scab revealing how neglect and absolute indifference have exposed these communities of older people to an end of life nightmare.

An important challenge is to ensure quality care in the best interests of the individual and as well as ensuring no institutional neglect and abuse that means overseeing the ways by which attorneys act towards the people in their care.

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Patricia Edgar is an educator. She was the architect of the Australian Children’s Television Standards, the founder of the Australian Children’s Television Foundation and the World Summit on Media for Children Foundation.

Dr Don Edgar, OAM, is a sociologist, an Ambassador for NARI (National Ageing Research Institute) and Foundation Director of the Australian Institute of Family Studies.

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