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Seniors Rights Victoria (SRV) is the primary, government-funded destination for older Victorians seeking information and support relating to abuse of older people. Financial abuse is the most prevalent form of abuse seen by SRV. This abuse most commonly manifests as financial loss arising from the disposal of an older person’s assets in exchange for their future care and accommodation, often under pressure from another party.
In most instances, SRV sees clients after the event, so the older person is left without adequate resources for their retirement and with broken relationships with the closest people in their lives. The emotional upset involved often occurs in conjunction with serious health issues, and the untangling of the arrangements entered into between the parties can be fraught with difficulties, not the least of which is the complexity of obtaining legal redress in such situations.
Based on the prevalence of these cases, SRV sought funding from the Legal Services Board (LSB) to produce two guides, this one, aimed at the legal profession and the second, for the community, with a view to:
- raising awareness of the extent to which older people are being exploited in exchanges of their assets for future care and accommodation;
- minimising risks;
- offering alternatives; and
- outlining processes for obtaining relief.
A final stage of this LSB-funded project is aimed at law reform. A research and policy paper will present the experience of SRV and the research and consultation for these publications, to advocate for changes in the law to address the current legal complexities and impediments.
Context
We are undergoing a ‘new demographic reality’ (Roszak 2009, p. 22). In another generation people over the age of 50 will outnumber those below for the first time, while the proportion of very old people in our society is also increasing. Between 1990 and 2010, the number of Australians over the age of 85 increased by 170.6% and the number of centenarians increased by 185%, compared with a total population growth of 30.9%.
This change is not only demographic but attitudinal as the over-50s, many of whom are asset-rich, play a critical role in all facets of society including the workforce, paid and otherwise, share valued knowledge and experience, help their families with caring responsibilities and are presumed able and entitled to make their own decisions (Roszak 2009, p. 2).
Also a reality, however, is that age can be accompanied by increased vulnerability and there are those who exploit this vulnerability (EAPP 2005, p. 7).
The combination of these factors has resulted in abuse of older people becoming a significant and growing phenomenon.
Financial abuse is the most frequently reported form of this abuse and the main perpetrators of abuse are adult children. A recent western Australian report found an average prevalence rate of abuse to be 4.6%, with the number of victims likely to almost double over the next 20 years. People with some form of decision-making disability are more likely to be subject to abuse. (See Clare et al. 2011; wainer et al. 2010; and DhS 2009.)
Given that assets are largely managed privately it is not surprising that financial abuse generally occurs within families (EAPP 2005, p. 7) nor that the most common form of financial abuse is where there has been a breakdown of a relationship of trust through what has become an exploitative arrangement – the exchange of assets for care and accommodation.
This is the focus of this guide.