A solicitor’s role in detecting and responding to Elder Abuse

Legal practitioners have an important role to play in the prevention of abuse of older persons, although the correct pathway once concerns are identified might not be clear.

Note: in this guide an older client is referred to as the “Adult” to distinguish them from other persons who may be a client.

Warning signs

Elder abuse can take many forms, such as physical, psychological, social and domestic, financial and neglect. Abuse might be perpetrated by an Attorney, Administrator or Guardian or by a family member, friend or neighbour, or by a person “supporting” the Adult informally. Warning signs include: 

• signs of distress, confusion or lack of care;
• behaviours of coercive control;
• a family member/carer with an established history of criminality, addiction or conflict with the Adult;
• a family member/friend who has had a distant relationship or estranged suddenly reappearing in the Adult’s life and decision making;
• a dispute within the family;
• instructions to make changes to long-standing arrangements without being able to provide an adequate explanation as to the reason for the change;
• the client being ill, unable to read or write, at a disadvantage in speaking English, financially unaware, or anxious when discussing the transaction, explaining their reasons or the person who will benefit;
• the client is physically or emotionally dependent on another;
• repeated or irregular changes to wills or powers of attorney within a relatively short period of time, especially to exclude a long-standing beneficiary or include a new acquaintance;
• changing legal practitioners especially from the client’s long-standing legal practitioner;
• someone attempting to interpose themselves between the client and the solicitor, controlling the information flow or demanding confidential information without authority;
• use of a legal practitioner who acts for the person benefitting from the transaction rather than an independent legal practitioner acting for the client; or
• legal documents and transactions being produced or undertaken at the instigation of the person benefitting and not appearing to be in the interest of the client.[1]

Caveat: Many of these signs are also natural elements of the distress and disruption that can accompany advanced age, bereavement and failing capacity. Changes in longstanding arrangements can occur naturally as a younger generation takes responsibility for the day-to-day care of the Adult. Abuse is also a spectrum and may not be deliberate. On one end of the range an impatient carer failing to take the Adult’s wishes into account and at the other, physical restraint or mistreatment of the Adult.  

The fact that one or more warning signs are present does not necessarily mean that elder abuse is taking place but should put a competent solicitor on enquiry.

Response

• Solicitors must start with a careful understanding of whom they are acting for to identify ethical duties of confidentiality and loyalty.
  1. When instructed by an attorney, both the attorney and principal / Adult are (potentially) “clients” for the purposes of these duties. If you identify a divergence of interests between the two you may need to terminate the retainer or refer the attorney away for independent advice.
  2. In rare circumstances you may report misconduct by one client (eg: the attorney) affecting the interests of the other client (eg: principal), but this requires very careful consideration.[2]
  3. Where the support person is acting informally, they are not as likely to be regarded as a client, but it is prudent to ensure that you warn them of this, and the warning is documented.
• When presented with an EPOA, you must check validity and evidence that any conditions for the attorney’s commencement (such as loss of capacity) have been satisfied; verify the order of appointment or manner in which the attorney may act if there are co-attorneys; and that any terms and instructions for the attorney in the document are being followed. Practitioners should impress upon any attorney of their specific obligations under s66 of the Powers of Attorney Act 1998 (Qld). From there we may generally rely on the attorney(s) to discharge their obligations[3] and provide valid instructions.  
• However, a solicitor cannot ignore the warning signs of abuse listed above, either when dealing with an attorney or (even more so) when dealing with family assisting older relatives informally. Nor can a solicitor assist with what is clearly a breach of the attorney’s obligations such as acting in a conflicted transaction without QCAT assent.[4]
• The relevant duties under the Australian Solicitors’ Conduct Rules (“ASCR”) include a duty to act in the client’s best interests (r 4), to follow lawful, proper and competent instructions (r 8), and maintain confidentiality (r 9).
•  Further information about abuse and capacity can be found here:
  1. LCA Best Practice Guide - Elder Financial Abuse
  2. QLS Elder Abuse Joint Issues Paper
  3. Queensland Capacity Assessment Guidelines 2020
  4. Queensland Handbook for Practitioners on Legal Capacity (nb: this is being updated).[5]

If you have concerns, further investigation is needed.

The practitioner should consider the best way that they can act in the interests of the Adult where concerns of elder abuse arise. Practical considerations to support the Adult include:

• Interview practices – language, time and privacy
• Enquiries–
  1. Do they understand the transaction?
  2. Is their capacity questionable or fluctuating?
  3. Does the Adult benefit appropriately from the transaction?
  4. Has the Adult been given an opportunity to reflect on the advice given?
  5. Are there reasonable alternatives to the proposed course?
• Take detailed and accurate notes

Referring clients for assistance (Queensland resources)

If, after an interview or investigation, your concerns remain, the question is what to do about it. This may not be easy. Where you have two clients, it is generally inappropriate to act for one contrary to the interests of the other.

If the Adult has the ability to reach out for assistance themselves, this is the preferred course. Referral options for the Adult include:

Seniors Legal and Social Support Services (SLASS)

Advocacy Services – ADA Law

ADA Law is a community legal service. It can assist older people in the following ways:

• Issues re EPOA, QCAT Guardianship and Administration 
• Assists the older person who may be experiencing harm (regardless of capacity question) – legal and non-legal advocacy
• Can be appointed by QCAT as a separate representative for an Adult who:

• cannot express their views and wishes, or
• has questionable capacity, or
• matters are complex where numerous parties are in dispute

• Can assist with further referrals: agencies (eg OPG, QPS, PTQ CLCs, community services, health and aged care providers) 
• Contact: 1800 232 529

Other Services

• National Elder Abuse Referral Line: 1800 353 374
• Seniors Enquiry Line & Elder Abuse Prevention Unit – helpline and referral service: 1300 651 192
• QPS Vulnerable Persons Unit
• Relationships Australia (Gold Coast, Rockhampton, Sunshine Coast): 1300 364 277
• Mediation – ideally focused on older people and family relationships
• Private (paid) legal advice

If the Adult has no realistic ability to reach out for assistance themselves, the solicitor’s position becomes more complex. If the alleged abuser is not a client, the solicitor can seek the Adult’s instructions to engage outside help. Even if the Adult has limited capacity, the capacity threshold required to give instructions to seek assistance is low. Do not push the client in that direction although it would be appropriate to reassure them on specifics such as confidentiality or that they are not alone.

If the Adult does not have capacity to give you instructions you may be able to make an own-motion disclosure if the client appears to be at risk of immediate physical harm or a serious offence (such as theft), the solicitor can make appropriate disclosure in order to obtain assistance.[6]  Please note that it is only where the conduct falls within one of the Rule 9 confidentiality exceptions that the solicitor could make an own-motion disclosure.

Public Guardian

Practitioners should note that the Public Guardian:

• Accepts referrals and can be confidential.
• Cannot act unless it has been established that the Adult lacks capacity.
• Can compel witnesses to provide information, reports, etc.
• Can suspend EPOAs and initiate QCAT applications.
• Must consider the older person’s views and preferences, in line with the General Principles in Guardianship and Administration Act 2000 (Qld).

Contact: 1300 653 187