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Be alert to inadvertent collusion with elder abusers

Be alert to inadvertent collusion with elder abusers

By Karin Derkley

Aged Persons Wills 


Practitioners working with older clients need to take care they are not inadvertently colluding with perpetrators of elder abuse, LIV Elder Law Section member Shahaan Murray says.

Ms Murray, the managing lawyer - Elder Abuse at Eastern Community Legal Centre, says she has seen cases of elder abuse that could have been averted earlier if legal practitioners had been more attuned to the red flags and not inadvertently allowed the abuse to occur.

"These cases of abuse could have been reduced if legal practitioners had not colluded with perpetrators, if they had informed substitute decision-makers about their obligations, and advised their clients about the risks regarding appointing substitute decision-makers,” she says.

Elder abuse is complex, touches on many different areas of people’s lives and can have wide ranging consequences for the victim, Ms Murray says. It can take the form of financial, psychological, emotional, physical or sexual abuse, or it can involve deliberate social isolation or neglect.

“In our experience, the majority of cases have involved financial abuse in concert with psychological abuse,” she says. "Sometimes we see attorneys acting as though the power is in place when it hasn't actually commenced yet, or acting outside their powers.”

Collusion can happen inadvertently when, for example, a practitioner finds themselves nodding along to someone saying that an elderly family member is always getting things wrong, indicating that their family member lacks capacity, she says. "That is telling your client that this is acceptable behaviour."

There are also instances where practitioners have been found to be acting in conflict by acting for one of the adult children who is a perpetrator of the abuse and may be a beneficiary under a will, she says.

Red flags indicating abuse could be a client becoming more dishevelled or withdrawn, an unexplained change in their financial circumstances, or a client becoming uncomfortable or anxious when asked questions about or in the presence of a family member or friend, she says.

The lack of face-to-face communication with older clients because of COVID-19 has made it even more difficult for practitioners to discern the possibility of elder abuse, she says.

"That makes it very important to gently ask people questions about whether they feel safe and free to make decisions on their own, do they feel that they're being pressured by anyone, do they feel they need any support?"

"These can be difficult conversations to have and it takes a lot of understanding about the issues around family violence and training to be able to manage those situations well," she says.

"It’s not something that we learned at law school," she says. "But it's something that needs to be built into the way that we teach law and the way that practitioners improve their practice skills."

Given that many practitioners do not work in multi-disciplinary, specialist teams or have family violence expertise, it may be appropriate for practitioners who recognise the signs of elder abuse to seek information and support from specialised services in their area, she says.

“It’s important that practitioners don’t feel responsible for providing all of that support and that they make themselves aware of the specialised family violence services that are available to assist.”

To help practitioners assist their older clients, the Law Council of Australia has issued the Best Practice Guide for Legal Pracittioners in relation to Elder Financial Abuse.

The LIV in conjunction with the Office of the Public Advocate has also issued a resource for lawyers who practice in future planning: Future planning for decision-making and the law in Victoria.

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