New laws making elder abuse a crime may cause confusion

Karyn Starmer 15 May 2020 7
Julia Bridgewater

Snedden Hall & Gallop Head of Wills and Estates, Julia Bridgewater. Photo: Region Media

A local Canberra lawyer says proposed laws making elder abuse a crime may cause confusion across the legal system. The laws, making it a crime to abuse or neglect a ‘vulnerable person’, were introduced to the ACT Legislative Assembly on May 7.

Under the new laws, cases of elder abuse will see fines of up to $80,000 or five years imprisonment imposed on individuals found to be in breach of the laws. Snedden Hall & Gallop Head of Wills and Estates, Julia Bridgewater says the problem with the laws is not in their intent but the vague and uncertain definition of a vulnerable person.

“Elder abuse is abhorrent, we saw its distressing effects during the Royal Commission. The community wants to know the government is doing something to address the issue and to introduce laws to deter the abuse by making elder abuse a criminal matter,” Ms Bridgewater said.

The ACT Law Society has said the bill will create an arbitrary offence that duplicates offences already applying in the ACT. Under the proposed legislation, a ‘vulnerable’ person would be defined as an adult who either has a disability, or is someone aged 60 or older who has a specific vulnerability in addition to their age. Ms Bridgewater agrees with the Law Society’s concerns that creating those definitions may cause more problems than it solves.

“The legislation does not make it clear what the phrase ‘socially isolated or unable to participate in the life of the person’s community’ means. While this may make it clear for the general public, for lawyers the phrase is less certain.”

Ms Bridgewater says the uncertainty in the legislation, and the risk of creating new offences, is that elder abuse could be harder to prosecute in court.

“The government is clear in its intention but the resulting legislation is not. Lawyers need to be able to give advice with certainty.

“When people come to a lawyer seeking advice, they are paying for a service and we want to be able to give a definitive response. It is never easy to be definite about what will happen in court, but with this new legislation, lawyers will find it hard to communicate effectively what the laws mean and how they apply including what kind of evidence the court and police will need to prove elder abuse has happened.”

Ms Bridgewater says in time the courts will give some guidance but for now while the laws are untested, families may be left wondering what they should do. “For example, if a family member had concerns that another family member had taken control of an older relative’s finances for legitimate reasons but was now using that person’s income as their own, they may be wondering if they should report it to the police.

“At this stage it would be difficult to advise what may be the likely outcome of a criminal prosecution but, every situation is different and it is always good to talk to a lawyer to see what options are available.”

More information on the Snedden Hall & Gallop Wills & Estates Team

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7 Responses to New laws making elder abuse a crime may cause confusion
Nora Preston Nora Preston 4:49 am 17 May 20

Are we also talking about exploitation of the Aged Pensioners as being abuse? Because we should. My Aged Care Pensioners are exploited to the fullest financially

Alexandra Hughes Alexandra Hughes 12:45 pm 15 May 20

Typical govt trying to insert themselves into things the know nothing about. My elderly mum who has been in a nursing home for 12 months now after living with me for 10 years no longer has her faculties making it very difficult to know fact from fiction. ACT GOVT. Stay out of it or you are going to end up with thousands of elderly removed from their carers for no good reason, and where are they going to go? Your place?

Louise Stirling Louise Stirling 4:48 pm 14 May 20

I am a carer and these proposed laws terrify me. My mother is incredibly stubborn and does not cooperate with the medical professionals. She hid from myself and her doctor a serious ailment and refused to be taken to the doctor or hospital when it became apparent, and refused to discuss with other family members. Threatened to call police, said it is elder abuse if we kept telling her how serious this was and that medical help was urgent. Eventually was taken by ambulance and when the ED doctor saw her wound, he turned to me and shouted "THIS IS NEGLECT, why didn't you get this treated EARLIER?". Under the proposed laws I would have been reported and treated as a criminal and charged with neglect. PLEASE consider carers like me who are having to care for reclusive, intensely private and uncoorporative people like my mother and cant protect ourselves from these proposed laws.

    Angela Thomas Angela Thomas 5:18 pm 14 May 20

    Louise Stirling I agree with you, having cared for my mother who did much the same sorts of things as your mum. Hate to say it but my solution was to put her into care - she had dementia and towards the end we struggled with her. She was good as good in care!!! My dad, after 3 hard years caring for him, decided that he would be better in care so he's there now and surprisingly happy. It's a very vexed issue and I can see that the most caring of children could potentially be penalised just the same as the most neglectful child - probably more so because the caring ones will take the time to be there for their parent!

    Louise Stirling Louise Stirling 6:38 pm 14 May 20

    My mother has always been like this unfortunately, but what makes it even worse is nobody but me gets to see or experience it. Nobody believes me because she presents the sweet, cooperative side to the outside world. No dementia present. Horrifying thing is these factors conspire to being unable to prove she engineers her own ‘neglect’ therefore if I was reported by others as having neglected her, I have no proof to be able to defend myself under the proposed new laws. Even now she could be and probably is hiding medical issues from myself and her doctors, who she incidentally keeps changing no doubt her avoidance strategy.

    Angela Thomas Angela Thomas 7:08 pm 14 May 20

    Louise Stirling oh dear - I had much the same, mum was sweetness and light to every one but me and oh so articulate (and secretive). I guess if she has been assessed as having capacity then you are technically in the clear. It was a huge struggle for me to get mum's capacity assessed - her GP thought she was a lovely lady and miraculously assessed her memory as "within normal limits" after (literally) a 5 minute consultation. My guess is he said "how's the memory?" she would have said "fine" and that was it. When they are articulate it's a big problem. Wish there was a magic answer for you - other than step right back and dont engage at all (which is impossible, I know) there isnt much you can do to protect yourself if one of the vigilante jobsworths decides that you are to blame! Document, document document is all.

Acton Acton 7:21 am 14 May 20

It is elder abuse when nursing homes prevent relatives visiting their dying parents because of fear they might bring a virus. It is elder abuse when nursing homes, sanctioned by government, impose cruel social distancing and isolation practices that prevent the elderly from hugging their grandchildren. It is elder abuse when all of us, the whole society, mistreat and ignore the most vulnerable group in the community when they need us most. Where are you, so called Human Rights advocates? Why your silence?

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