Is there a good way to prevent elder abuse? There is a collective belief forming among elder experts that one of the most effective ways to prevent elder abuse, particularly financial abuse, is through mediation.
What Is Elder Financial Abuse?
Financial abuse is the most reported and analysed form of elder abuse, because it’s the most common form of elder abuse. Usually perpetrated by a family member, an Australian study found that between one-third and two-thirds of those experiencing financial abuse had dementia.
Financial abuse was carried out through means including misuse of powers of attorney, coerced changes to wills, unethical trading in title to property, and the coercion of people without capacity into signing documents in relation to assets that would result in financial gain for the perpetrator.
In order to prevent elder abuse, we must understand what the risk factors are for its perpetration. The strongest risk factors that have been identified for older people being financially abused are: a family member having a strong sense of entitlement to an older person’s property or possessions; the older person having diminished capacity; and the older person being dependent on a family member for care. Many older people with dementia are likely to experience a number of these risk factors.
In 2014, Alzheimer’s Australia NSW undertook research to examine how financial abuse of people with dementia occurs, and how it can be prevented or reduced. The study found that it is very difficult to estimate the prevalence of financial abuse of people with dementia, particularly as it is often unreported, due to shame, fear of/dependence on the perpetrator, lack of knowledge of who to report to, and difficulties in understanding and recalling the abuse. However it is clear that much of this financial abuse occurs within families, with children of older people with dementia often reported to be the perpetrators. The research found that a considerable proportion of financial abuse is perpetrated by people appointed as an attorney under Enduring Power of Attorney arrangements, though this was not always the case. Most perpetrators were known to the victims.
What Is Elder Mediation?
Elder mediation is defined here as a mediation process used to improve the wellbeing of individuals, families and society in areas that are characteristic of issues that arise for the elderly.
Elder mediation has many of the characteristics of the mediation processes that are provided by organisations around child care, restorative justice, care of adults with disabilities, mental health issues or separation. Family mediation will assist with conflict issues throughout life. Elder mediation focuses on the end phases of life, notably loss of work, health and life itself.
How Can Mediation Help Prevent Elder Abuse?
When elder mediation is considered the issue of “capacity” is often raised as a barrier to the consideration of mediation. The issue of mental capacity itself is generally regarded as not suitable for mediation because it is a legal determination. Numerous other issues arise in connection with an application for adult guardianship, however. For example, there can be a dispute over who among several family members is to be the guardian, or over the extent of the powers the guardian should have. Issues of this kind are amenable to negotiation and agreement among interested parties, and leave room for mediated solutions.
Mediation services may be a way to “tailor” solutions to an individual’s circumstances. The development of elder mediation in particular builds on the general trend in increased use of mandatory and/or voluntary mediation. Mediation is becoming a common stage in conflict resolution, most notably in family law and employment law. How the question is being asked: why can’t mediation be used in elder law as a means to prevent elder abuse?
Preventing Elder Abuse
Adjunct Associate Professor Dale Bagshaw, an expert in mediation at the University of South Australia, has called for more preventative measures to be put into place to protect our elderly citizens.
She says this is due to the rising incidence of the most common type of elder abuse in Australia, which is financial abuse. Professor Bagshaw says the problem will continue to get worse as the population ages over the next twenty years.
Financial abuse can manifest in many ways. One example is of children refusing to visit their elderly parents unless they are given money or assets. Other examples include bullying elderly people for money or forcing them to sell assets, including their own homes. She also warns that often several types of abuse are often present at the same time.
She says mediation can often help prevent elder abuse, by providing an opportunity for family members and significant others to get together to make plans or have difficult conversations in the presence of an impartial third party. The mediator ensures that the interests, rights and safety of the older person is taken into account in any decision making.
She goes on to say: “an older-person-centred mediation approach puts the safety of our older citizens first and makes sure their rights are upheld, especially when their capacity to do so for themselves might be impaired for any number of reasons.”
Alzheimers Australia made a submission in response to the Australian Law Reform Commission, and included recommendations to address and prevent elder abuse.
One recommednation was to require financial institutions to adhere to a code of conduct that would address and prevent elder abuse, including staff education and training on financial abuse and the vulnerability of people with dementia, mandatory reporting of financial abuse, and information for customers on financial abuse.
The submission also recommended that older people have improved access to quality elder mediation services. The report suggested a nationally consistent approach to elder mediation, followed by a community awareness campaign to encourage consideration of mediation options. The report also regonised that further work is needed to develop mechanisms to ensure that the rights of a person with cognitive impairment are not compromised in the mediation processes.
At Mitchells Solicitors, we can help prevent elder abuse or find a remedy for existing financial abuse. Time limits are often imposed under the law, so if you think someone might be at risk of being financially exploited, contact us today.