What is the Connection between Elder law and Elder Abuse?

By 2 June 2023Uncategorized

An elder may be defined as a person whose experience of life provides them with the authority to command respect from others or to whom others defer for that reason. Our aim as a legal practice is to assist and advise clients and their representatives and supporters who identify with the term or those that may be identified according to the many definitions of elder.[1]

Elder abuse is a real and growing problem in Australia,[2] and it is one of the main legal issues Elderlaw Legal Services engages with. It is not defined by legislation in most states and territories with the exception of the ACT. Thus the lack of specific laws associated with elder abuse[3] results in issues that are addressed by general criminal and civil law. In Australia, elder abuse is characterised by abuse directed towards vulnerable elders, rather than all elders.[4] This distinction can sometimes be identified by the level of dependence of  day-to-day needs[5] upon persons close to them (personal caretaker/family/etc).

The Different Types of Elder Abuse

As a social  issue that lacks a purpose specific law, the key to elder abuse is that it is a collection of general legal issues. [6] For example, what may be described as Financial Elder Abuse is a collection of legal breaches associated with the intention to make financial gain. [7] The following table provides some, but not all, examples of elder abuse elements and their corresponding legal connection: [8]

Financial Elder AbuseUndue Influence
Unconscionable Conduct
Estoppel (Promise acted upon – detriment)
Constructive Trust
Contracts Review
Breach of Fiduciary Duty
Legal Recourse
Equity + Probate Jurisdiction – Superior Courts
Tribunals in guardianship division for appointment of an independent financial decision maker  
Psychological Elder AbuseUndue Influence and unconscionable conduct – Will making, gifts, and property transfers
Loans & Guarantees
Accommodation Arrangements [Granny Flats]
Legal Recourse
Superior Courts with Equitable Jurisdiction  
Elder Abuse by NeglectWithholding nutrition
Lack of care and Medical Attention where the Abuser has a duty or an obligation to the Vulnerable Elder
Legal Recourse
Criminal Courts + Coroners Court
Civil + Administrative Tribunals – Guardianship appointment 
Physical Elder AbuseAssault
Unlawful Restraint
Legal Recourse
Criminal Charges – Local Court
Domestic Violence – Local Court
Civil Claims – Common Law [Note – Civil liability legislation for damages can be a bar to a claim if death is a result or damages are limited]      
Sexual Elder AbuseUnwanted sexual acts, including
Sexual contact
Language or Exploitative Behaviours
Legal Recourse
Criminal Charges – Criminal Court
If the victim is in aged care – the contract may afford some protection and redress by allowing separation of the offender.  

Financial Elder Abuse

The issue of Financial elder abuse often comes to the attention of lawyers when clients seek advice for recovering property, money, or other means to redress the abuse. [9] This type of elder abuse is what the legal profession is quite familiar with and one that is found to have a strong connection with inter-generational dependence. [10] The abuse can arise in relation to: [11]

  • Accommodation, loans, guarantees;
  • Promises of care by family members in return for money or other advantage;
  • The making of wills under pressure;
  • Breach of duty under an enduring power of attorney; and
  • Misuse of powers arising under enduring guardianship appointments.

When Financial Elder Abuse occurs, the following are some examples of the context within the relationship between the perpetrator and the elder:[12]

  • The vulnerable elder is suffering from dementia and that may enable unfair advantage to be taken by the abuser.
  • The perpetrator misuses their power of attorney, applies coercion to achieve a change in the elder’s will, coercion to change the ownership of the property, and coercion involving gifts, loans and guarantees.
  • Adult children may seek to preserve their inheritance and refuse to exercise their authority to sell assets left to them in the elder’s will which would otherwise be used as funds to enter aged care for a refundable accommodation bond. Thus the possibility of losing pre-mortem control is avoided.

Psychological Elder Abuse

This form of elder abuse occurs when a perpetrator has control over the victim because of the elder’s dependence on the perpetrator’s caretaking. When this is established, it may result in attempts by the perpetrator to leverage their emotional attachment with the elder. Psychological elder abuse may take the form of, verbal abuse, name calling, bullying and harassment. [13] For example, when power is established, threats may be made to the elder to withdraw affection, to place the victim into a nursing home, or to keep the victim from seeing family and friends. [14] An adult child may threaten or blackmail their elder parent such that the victim will have no choice but to accept the terms of the psychological threat. [15]

Elder Abuse by Neglect

Elder abuse may occur as a result of intentional or unintentional neglect. [16] It may occur when an older person is not provided with necessities such as food, shelter, or medical care. Depending on the circumstances of the elder’s living arrangements, the responsibility for providing necessities of life may fall on family members, staff in residential care facilities, or others who provide in-home care. [17] For example, elder abuse by neglect may occur in circumstances where the elder suffers from injury or becomes exposed to threats caused by the failure to attend to the needs and monitoring the health of the elder. [18]

Physical Elder Abuse

Physical elder abuse occurs when a vulnerable elder is subjected to actions such as pushing or shoving, [19] kicking, punching, slapping, biting or burning, [20] and rough handling.[21] Examples of restrictive practices include restraining a person with ropes or belts, locking someone in a room, or unnecessarily administering sedatives.[22]

Physical elder abuse may also arise when a breach of duty occurs. For example, an aged care staff member may restrain a vulnerable elder against their will as a response to their behaviour.[23] The law draws a grey line on what constitutes ‘unlawful severe restraint’. Unless the elder has given prior consent, or there is risk of imminent harm to the elder or another person, that is unlawful and it becomes physical elder abuse.

Sexual Elder Abuse

Sexual elder abuse may take the form of unwanted sexual contact, which may include inappropriate touching and the use of sexually offensive language.[24] One of the ways sexual elder abuse can be identified is through the behaviour of one resident towards another within a care facility. A resident, who may be the perpetrator, may intrude on the private space of a victim resident by remaining uninvited in another’s room or unsupervised stalking of another resident.[25] This may occur due to the minimal supervision of staff and/or failure to report the perpetrator resident’s behaviour.[26] The result can be traumatic for the victim elder resident.

Elderlaw Legal Services notes that this article is written for the purpose of provided generalised information and not to provide personal or specific legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Elderlaw Legal Services are here to help. Please get in touch with us on 02 9979 1009.

[1] Rodney Lewis, ‘Elder Law – Where to Now – Step Adelaide’ 2019, p 17 (‘Elder Law Seminar’).

[2] Wendy Lacey, ‘Neglectful to the Point of Cruelty? Elder Abuse and the Rights of Older Persons in Australia’ (2014) 36(1) Sydney Law Review 99, pp 108-111.

[3] Melanie Joosten, Freda Vrantsidis and Briony Dow, National Ageing Research Institute Limited, Understanding Elder Abuse, A Scoping Study, June 2017, p 45.

[4] Elder Law Seminar (n 1) 17.

[5] NSW Legislative Council Report, 2014 [2.10].

[6] op. cit. at page 23-4.

[7] Ibid 23-4.

[8] Elder Law Seminar (n 1) 23-4.

[9] Ibid 9.

[10]  NSW Legislative Council Report (n 7) [2.190]

[11] Elder Law Seminar (n 1) 9-10.

[12] Australian Institute of Family Studies, Elder Abuse Research Report No. 35 – February 2016.

[13] Australian Law Reform Commission, Publications (Web Page) < https://www.alrc.gov.au/publications/abuse-older-people/#_ftn71>; Elder Law Seminar (n 1) 14.

[14] Ibid <https://www.alrc.gov.au/publications/abuse-older-people/#_ftn76>; ibid 14.

[15] Urane v Whipper [2001] NSWSC 796, [24].

[16]  Australian Law Reform Commission (n 13) <https://www.alrc.gov.au/publications/abuse-older-people/#_ftn90>; Elder Law Seminar (n 1) 16.

[17] Ibid 15.

[18] 247 News Around the World, ‘Family sues Bendigo aged care for negligence after grandmother’s death’, 247 News Around the World (Web Page)  https://247newsaroundtheworld.com/news/family-sues-bendigo-aged-care-for-negligence-after-grandmothers-death/>.

[19] Australian Law Reform Commission (n 13) <https://www.alrc.gov.au/publications/abuse-older-people/#_ftn86>; Elder Law Seminar (n 1) 15

[20] Ibid <https://www.alrc.gov.au/publications/abuse-older-people/#_ftn87>; Ibid 15.

[21] Ibid <https://www.alrc.gov.au/publications/abuse-older-people/#_ftn88>; Ibid 15.

[22] Ibid 15.

[23] Skyllas v Retirement Care Australia (Preston) Pty Ltd [2006] VSC 409.

[24] Elder Law Seminar (n 1) 16.

[25] Department of Health and Aged Care, ‘Changes to reporting for unlawful sexual contact or inappropriate sexual conduct’, Serious Incident Response Schene (SIRS) (Web Page) <https://www.health.gov.au/our-work/serious-incident-response-scheme-sirs#changes-to-reporting-for-unlawful-sexual-contact-or-inappropriate-sexual-conduct>.

[26] Ibid.

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