Elder Law Review
The Elder Abuse Prevention Unit (EAPU) in Queensland is funded by the Department of Families and auspiced by Lifeline Brisbane. The unit maintains a statewide response to elder abuse by undertaking education, training and awareness raising activities. It also operates a business hours Helpline telephone service for those experiencing or witnessing the abuse of an older person (call 1300 651 192 anywhere in Queensland for the cost of a local call). The EAPU involves itself with data collection and wherever possible provides input into government strategies, policy and legislation in this area. Current literature suggests that between 3 per cent and 7 per cent of people over the age of sixty-five will experience abuse from someone with whom they have a relationship of trust. This article will comment on some of the issues surrounding Queensland Legislation as it relates to the abuse of older persons.
Until amendments to the Domestic and Family Violence Protection Act 1989 were proclaimed on the 10th March 2003, Queensland had lagged behind other Australian states in providing legislative protection to older persons experiencing abuse. This piece of legislation, previously the Domestic Violence (Family Protection) Act 1989, was originally drafted to provide a civil/criminal response to spousal violence with later amendments extending protection to same sex couples. However, the most recent amendments have dramatically increased the legislation’s coverage by targeting a broader range of relationships.
The basic mechanisms remain relatively unchanged: a court has the power to grant a protection order on the ‘balance of probability’ that domestic violence has occurred. Breaches are still dealt with as criminal matters. Similarly the definition of ‘Domestic Violence’ is unchanged although it now applies to violence committed within the new and broader term ‘Domestic Relationships’. The new categories and definitions under Domestic Relationships include Family, Informal Care, and Intimate Personal relationships. Spousal relationships and its definition remain unchanged.
It is expected that older people, people with a disability and those experiencing violence in a dating relationship will be the new client group for this legislation. A number of services have recently been funded across the state to provide counselling, advocacy and court support for these victims of family violence now protected under this legislation.
Helpline Data: Although EAPU data is based on individual reports of abuse received via the Helpline, it does mirror larger academic studies in most areas. Violence against older persons occurs most commonly in the parent/adult child relationship. Helpline data for the period 1 November 1999 - 31 October 2002 show 233 reports (32 per cent) of abuse was perpetrated by an adult son or son-in-law and 185 reports (25 per cent) where the adult daughter or daughter-in-law was recorded as the abuser. Violence perpetrated by a partner was recorded in ninety-three or 13 per cent of calls, while the remaining 226 calls (30 per cent) were spread among other family relationships, friends, boarders etc. Of the 737 notifications to the EAPU Helpline, 76 per cent refer to an abused older woman while over half (56 per cent) of the abusers are the middle-aged sons or daughters.
Reluctance to act: Those responding to abuse or violence in this older age group will often experience reluctance on the part of the older person to seek action against an abuser, particularly when the abuser is a family member such as their adult son or daughter. This reluctance may be due to shame or guilt or may be the natural desire of a parent to keep their child out of trouble with the law. However, there are a number of complex issues that can impact on individual’s willingness to seek assistance.
Workers in this area often identify that the abuser may also require assistance with issues that are likely contributors to the abusive situation including mental illness, alcohol/substance abuse, accommodation problems, debt or financial difficulties and so on. In these types of situations the older person will usually only seek assistance when all their efforts have failed and they can no longer tolerate the behaviour or have become too frail or ill to deal with it.
Therefore any options provided may also need to address the issues of the abuser, although police interventions are encouraged for criminal acts such as assault or fraud. The option of obtaining a Domestic Violence Order is explained as a way of setting the limits of a person’s behaviour. In this regard it is made clear that it is the abuser’s choice, not the older person’s, whether the abuse is to become a criminal matter by the breaching the conditions of the order.
Health, Access & Capacity: Over 80 per cent of the notifications to the EAPU involved an older person with health problems, a number of which involve mobility. Access to legal services can therefore become restrictive particularly if public or private transport is not readily available. Community legal services often operate at night, which also raise safety concerns for the older person. To my knowledge there is only one community legal service in Australia that specialises in legal issues affecting older people and caters for access issues by providing an outreach service. The successful Legal Outreach For Older Persons (LOFOP) program operated by the Caxton Legal Centre Inc was recently resurrected with state funding that accompanied the new legislation.
Another health issue, which is recorded in around 20 per cent of Helpline calls, involve a person with impaired decision-making capacity. Protection in this area mainly comes under the Guardianship and Administration Act 2000. However provisions have been made within the Domestic and Family Violence Protection Act 1989 to allow attorneys, guardians, administrators and the Adult Guardian to apply for an order on behalf of a person who does not the have capacity to do so themselves. The legislation also provides for the court to inform the Adult Guardian about a situation of domestic violence involving a person with impaired decision-making ability.
An area of concern here is where the abuser is the older person’s guardian or attorney and may use the legislation in an attempt to further control and isolate the older person by having them ‘Named’ on a protection order to restrict access by another family member. The EAPU Helpline has had two calls around this issue.
Other issues of abuse involving a person with impaired capacity are also manifest in the misuse of an Enduring Powers of Attorney (EPA) as well as with the appointment of an attorney in the first place. The previously ad hoc approach of determining capacity by those witnessing EPA documents was recently addressed by the Queensland Law Society in partnership with the Office of the Adult Guardian by providing ‘Capacity Guidelines for Witnesses of Enduring Powers of Attorney’. These practical guidelines serve to protect the interests of the principal as well as the witness when signing and witnessing these documents.
The Queensland Law Society and Department of Families also formed a partnership to produce the ‘Seniors and the Law Information Kit’ which provides seniors with access to a number of easy to read brochures on a range legal issues. These projects, identified and promoted under the Prevention of Elder Abuse Task Force (PEAT) Strategic Plan 2002, deal with capacity and access to legal information as well as other initiatives currently underway in Queensland.
PEAT was developed in collaboration with a wide range of government, academic and community based organisations and supported by the Queensland Law Society. The Elder Abuse Prevention Unit promotes the strategic plan as a way of coordinating services and disciplines in their response to elder abuse. For further information on any of these projects or in relation to elder abuse issues in Queensland please e-mail EAPU@lifelinebrisbane.com.au .
 Senior project officer, Elder Abuse Prevention Unit.
 S Kurrl., P Sadler and I Cameron, ‘Patterns of Elder Abuse’ (1992) 157(10) Medical Journal of Australia 673; M James and A Graycar, ‘Abuse in Private Homes: Risk, Prevalence and Theoretical Issues’ (2000) Australian Institute of Criminology Research and Public Policy Series, No. 32.