‘It’s The Law’ – Spotlight on elders
Elder abuse is a worry of many Wimmera residents.
Elder abuse is any act which causes harm to an older person and is carried out by someone they know and trust.
Seniors Rights Victoria says elder abuse is most likely to be carried out by the children of the older person. The harm might be through different forms including physical, sexual or financial abuse, neglect and emotional abuse.
Physical abuse is physical force against an older person which causes illness, pain, injury, functional impairment, distress, or death.
Sexual abuse involves forced or unwanted sexual interaction of any kind with an older adult. This might include unwanted sexual contact or penetration or non-contact acts such as sexual harassment.
Neglect is the failure to meet an older adult’s basic needs including food, water, shelter, clothing, hygiene, and essential medical care.
Emotional or psychological abuse is commonly caused by verbal attacks on an older person that inflict anguish, mental pain, fear, or distress on an older adult.
Enforced isolation is another form of psychological abuse.
Financial abuse is the illegal, or improper use of an elder’s money, benefits, belongings, property, or assets for the benefit of someone other than the older adult.
Prevention
Preventing elder abuse can be difficult.
Planning your older years in advance might assist, including in relation to your future accommodation, paid and unpaid care and the family and social connections you wish to maintain.
The risk of financial abuse can be reduced through a well drafted financial power of attorney. You can determine who has the right to decide where you live if you cannot make that decision in your later years through a personal enduring power of attorney.
What to do
Many types of elder abuse are crimes should they be perpetrated against anyone, regardless of age, and can be reported to police.
Possible criminal charges for physical abuse include conduct endangering life, negligently causing serious injury, unlawful assault, intentionally causing injury, assault or sexual assault; sexual abuse includes charges such as rape, aggravated rape and sexual assault; and financial abuse includes charges such as theft and obtaining a financial advantage by deception.
As criminal charges, these charges are required to be proven beyond a reasonable doubt, which is a high threshold.
Alternatively, if elder abuse is perpetrated by a family member, then an application can be made to protect the older person under a family violence intervention order. As such an order is in the civil jurisdiction rather than criminal, the threshold for a magistrate to make this order is lower and is on a balance of probabilities that the perpetrator of the abuse has committed family violence against the older person and is likely to continue to do so, or do so again.
The definition of family violence is broad. If the intervention order is breached the perpetrator can then be charged with the criminal offence of contravening an intervention order.
Thirdly, if the victim of elder abuse has been financially abused by their power of attorney, then the power of attorney might be guilty of an offence under the Powers of Attorney Act 2014 (Vic).
A solicitor can discuss steps appropriate in your particular circumstances.
You might also benefit from speaking to Seniors Rights Victoria through their confidential helpline on 1300 368 821 or from visiting their website www.seniorsrights.org.au/resources-education/elder-abuse-toolkit/what-is-elder-abuse/
If you, or someone you know, is at risk of immediate harm, call 000.
• Patrick Smith is the principal of O’Brien and Smith Lawyers. This article is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. Neither Patrick nor O’Brien and Smith Lawyers accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your lawyer.