In the face of an aging population and the consequential increase in age-related cognitive impairment, there has been a growing concern for the need to protect older Australians from abuse by people they trust. This concern has come even more apparent in light of the Covid-19 pandemic.
In its report Elder Abuse – A National Legal Response published in June 2017, the Australian Law Reform Commission called for a national response to elder abuse, stating that the need to protect the rights of elderly Australians from abuse was ‘everybody’s business’.
The recent case of IFZ (Guardianship)  VCAT 582 (IFZ) provides timely guidance on one of the more common means of combating elder abuse — the appointment of a substitute decision maker for a person under a disability under the Guardianship and Administration Act 2019 (Vic) (the GAA Act).
What is elder abuse?
The World Health Organization (WHO) currently estimates that 15.7% of people over the age of 60 are subjected to abuse, with this figure likely to be higher as many cases of abuse are not reported.
Elder abuse is defined by the WHO as: ‘a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person’.
This can often take the form of financial abuse such as taking control of an elderly person’s finances, influencing them to change a will or transfer a property, or misusing a power of attorney to gain a financial benefit.
The IFZ case
Central to IFZ where questions of whether a 90-year old widow had a disability and whether she lacked decision-making capacity in respect of her financial affairs in circumstances where there were allegations of financial abuse against her by her son.
In finding that the elderly widow had a disability and, because of her disability, she did not have decision-making capacity, the Judge set out the following key principles on the relevance of a person’s vulnerability to influence and exploitation:
- The primary object of the GAA Act extends to, ‘protection of vulnerable persons against exploitation’.
- Vulnerability to undue influence and exploitation are relevant considerations when:
- evaluating a person’s decision-making capacity; and
- determining the link between a person’s disability and their lack of decision-making capacity.
- It is not the description of the disability but the impact of the disability on a person’s decision-making capacity that is relevant.
In IFZ this meant that even though the elderly widow’s disability was characterised as ‘mild cognitive impairment’, having regard to her circumstances including the complexity of her financial affairs, her rigidity of thinking, and that her disability acted to heighten her vulnerability to undue influence and exploitation, the Judge was comfortably satisfied that she lacked decision-making capacity because of her disability.
The IFZ case has also made clear the need for legal and medical professionals to consider an elderly person’s vulnerability to influence when conducting capacity assessments and to have regard to their potential for exploitation by family members or people in a position of trust.
The onset of Covid-19 has only heightened the risk of elder abuse. Common risk factors for undue influence such as isolation, change in family dynamics, and dependency for emotional and physical needs have risen, with many older people now reliant on family members to support them with daily living and managing their finances.
The IFZ case has confirmed that a person’s vulnerability to influence and exploitation are relevant considerations in determining whether an administrator should be appointed to manage their financial affairs.
If you have any concerns regarding elder abuse or influence being exerted over an elderly person, they should be raised with a health professional and legal advice obtained at the earliest opportunity.
For more information on the IFZ case, or for advice on elder abuse or guardianship and administration, please contact a member of our Estate Group below.
Principal Lawyer and
Head of Estate Group
D +61 3 8600 8885
|Jennifer Maher, |
Principal Lawyer and
Accredited Wills and Estates Specialist
D +61 3 8600 0710
D +61 3 8600 8817
D +61 3 8600 8806
D +61 3 8600 8826
This Estate Group case note was authored by Paul Beasant, Special Counsel, who also acted in the IFZ case.
Note: This update is a guide only and is not intended to constitute legal advice.