15 May 2020

New laws making elder abuse a crime may cause confusion

| Karyn Starmer
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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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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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