Older Australians who are unaware of their legal rights, are at increased risk of elder abuse and other types of human rights violations.

According to lawyer Catherine Henry, who specialises in elder law, some abusers use an elderly person’s lack of understanding to misuse powers of attorney to legally control that person’s finances or make decisions about their care.

“Others may isolate the elderly person, preventing them from seeking help. In some cases, abusers may take advantage of cognitive decline to manipulate or coerce decisions, such as changing a will or signing over assets.”

Older Australians have the right to make decisions about where they live, provided they have the legal capacity to do so, Henry said.

“If an older person is found to lack capacity, a substitute (or supported) decision-maker may be appointed through legal processes such as through the vehicle of guardianship or an enduring power of attorney (‘EPOA’).

“EPOAs have been described in various enquiries as a major instrument of elder abuse and it is best to have an independent person available at the signing of an EPOA.”

Any decision taken by a substitute decision maker should always prioritise the older person’s best interests and respect their wishes as much as possible, Henry said.

“Financial abuse often involves misuse of powers of attorney, unauthorised withdrawals from bank accounts, or coercing an older person into changing their will or signing over assets.

“Abusers may also manipulate older Australians into handing over large sums of money or agreeing to disadvantageous financial arrangements, such as selling property or making investments that benefit the abuser more than the elderly person.

According to Henry, there has been an increase in clinical abuse, in recent years, referring to abuse occurring within residential aged care facilities.

“In such cases, staffing shortages and poor training contribute in very large part to substandard care and even mistreatment.”

Older Australians have specific rights within aged care facilities, as outlined by the Aged Care Act and the Aged Care Quality Standards.

“Rights should always be enforceable and deal with such vitally important issues as access to quality care, decisions about accommodation and care, and the right to live in a safe and respectful environment.

“Each person entering a residential aged contract will be given an accommodation agreement and assistance needs to be obtained in reviewing the facility’s contract – as well as the family or trusted adviser familiarising themselves with the Aged Care Quality and Safety Commission’s guidelines.”

Henry said if an older person felt their rights are being overridden, it’s important to seek legal advice as soon as possible.

“As an alternative, a complaint by the older person to their regular GP or person outside the family should be seen as an effective option.

“Another avenue is to communicate with trusted family members or friends who can advocate on their behalf, as well as numerous aged care advocates and support organisations such as Older Persons Advocacy Network and Elder Abuse Action Australia.

“There is help available, even though the older person might feel isolated and trapped.”

Lawyers who specialise in elder law can help the older person or their independent friend or GP understand their rights and explore their options, such as challenging a guardianship order or a decision to move them into care against their will.

“Older Australians should have clear, legally binding documents in place, such as enduring powers of attorney, wills, and advanced care directives, which outline their wishes for medical care and financial management.

“It’s also crucial to regularly review these documents and ensure that any individual who has been given authority is trusted. 

Consulting with a lawyer specialising in elder law is an important step in safeguarding against future exploitation or abuse.