Consultation Draft of the National Plan on the end of mistreatment and abuse of older people - Response from National Legal Aid

I support the Attorneys-General of each Australian state and territory working towards ending the abuse and mistreatment of older people.

National Legal Aid (NLA) strongly agrees with this statement. NLA represents the Directors of the eight state and territory Legal Aid Commissions (LACs) in Australia. The LACs are independent statutory authorities established under respective state or territory enabling legislation. They are funded by state or territory and Commonwealth governments to provide legal assistance to disadvantaged people. In particular, LACs provide a range of services focused on the prevention of the abuse and mistreatment of older people. Details of services provided in some jurisdictions is listed below. 

Legal Aid ACT (LAACT)

The Older Persons ACT Legal Service (OPALS) is a specialist service within Legal Aid ACT.

• OPALS focuses on preventing the abuse and mistreatment of older people by:
  • Providing legal advice and assistance to older people and those concerned about an older person in various community settings 
  • Raising awareness in the community and among professionals through targeted education and collaboration activities 
  • Publishing, promoting, and distributing an annual diary which contains legal topics for older people (in hard copy and online) – in 2024, 10,000 hard copies of the diary were distributed
  • Participating in a monthly interview on ABC Radio Canberra on a legal topic for older people 

Legal Aid NSW 

The Legal Aid Commission of New South Wales (Legal Aid NSW) is an independent statutory body that provides legal services across New South Wales. We assist with legal problems through a comprehensive suite of services. Legal Aid NSW’s Elder Abuse Service provides support to eligible clients at risk of or experiencing elder abuse. It is an interdisciplinary team that has lawyers and a social worker providing legal assistance and social supports in a holistic model of service delivery. 

Legal Services SA (Legal Services)

While Legal Services does not have a dedicated service for older people, it provides:

• free legal information and advice to all South Australians on a wide range of topics delivered through the Legal Helpline, online Legal Chat and appointments;
• representation of protected persons in reviews of guardianship and administration orders in the South Australian Civil and Administrative Tribunal;
• online and hard copy publications relevant to older people; and
• community legal education sessions tailored to groups of older people. 

The Legal Information and Advice Division lawyers provide information and advice to a large number of older people experiencing legal problems, including abuse. In FY 2023, Legal Services provided a total of 2,679 services to older persons (65+ years of age or 50+ for Aboriginal and Torres Strait Islander people). Free legal advice appointments are offered over the phone or in-person at both metropolitan and regional offices. Lawyers consider the individual’s options and any relevant referral pathways, both internal and external. 

Case Study: Support to escape an elder abuse situation

An elderly gentleman was referred to our legal advice section by an employee of the Adult Safeguarding Unit, who initially attended his appointments with him. The client had been experiencing domestic violence and elder abuse over his 50 year relationship with his partner and from his adult children who lived under the same roof. Over multiple appointments the client was provided with general advice about divorce and property settlement as well as safety planning to enable him to leave the relationship and remove himself from the elder abuse he was experiencing from his adult children. He was assisted to secure accommodation from Housing SA and secured funding for a family dispute resolution conference to achieve a property settlement.

Case Study: Support for future planning

An older migrant attended an advice appointment, stating that her children had been trying to take over her affairs and force her into a guardianship order so they could sell her home. Legal Services were able to assist by explaining the effect of both an Advance Care Directive and a Power of Attorney and gave her information to enable her to put these in place. This included assisting her to book an appointment with the Public Trustee as she said her children had isolated her and she had no one she could trust to look after her affairs. Legal Services also provided her with information for elder abuse groups. 

Tasmania Legal Aid (TLA)

TLA’s Senior Assist is a team of integrated lawyers and case managers providing free legal advice, assistance and support to seniors who are experiencing or at risk of experiencing elder abuse. The lawyers and case managers are in Hobart and Launceston but covers geographically the whole of the State of Tasmania. 

Legal Aid Western Australia (LAWA)

Elder Rights WA (ERWA) is a state-wide legal service based in the Civil Law Division of LAWA. A multidisciplinary team of lawyers and social workers provide advice and assistance to older people experiencing elder abuse or requiring support to maintain their rights. ERWA also delivers community education activities to raise awareness of elder abuse and legal measures available to assist in prevention. The service can be accessed by people aged 65 years or over, or from the age of 55 years for First Nations clients. Advice can be provided over the phone to an older person living anywhere in Western Australia, with some virtual and face-to-face options also available. 

I agree with the vision of the National Plan. The vision of the National Plan is: All older people feel safe, valued and heard; have their rights protected and promoted; and live free from abuse and mistreatment.

NLA strongly agrees with this statement. 

I support a 10-year National Plan. 

NLA strongly agrees with the development of a 10-year National Plan. However, NLA notes that lack of commitment to additional funding and/or resourcing will make the implementation of the Plan difficult and would strongly recommend funding be provided to support increased and improved service delivery to prevent elder abuse as well as supporting victims. In particular, NLA recommends that the Plan includes a commitment to additional funding for the legal assistance sector.

NLA welcomed the finalisation of the 5-year National Access to Justice Partnership in November 2024, noting that the $3.9 billion funding under the agreement represents an increased investment across the legal assistance sector to provide for more sustainable service delivery. In particular, the ongoing funding ensures that LACs can continue to deliver vital family law services to disadvantaged women and children. However, due to ongoing demand this funding will not address critical funding pressure points for LACs. In particular, the funding is insufficient to cover any increase to the Legal Aid means test, which will continue to limit access to Legal Aid to only 8% of Australian households. This means that clients need to be well under the poverty line to access legal representation.

As such, NLA continues to argue for further increases in funding across the legal assistance sector, including for Aboriginal and Torres Strait Islander Legal Services and Family Violence Prevention Legal Services, to ensure ongoing and improved access to justice for the most vulnerable in our community, including older people.

In addition, NLA notes the existing limitations of service delivery, particularly in regional and remote areas, and the need to identify and address service gaps to ensure all older people have access to affordable services. Consideration should be given to including a review of existing service delivery in the Plan. 

I support the implementation of the National Plan through two 5-year action plans. 

NLA strongly agrees with this statement. 

I agree that the appropriate priority groups are recognised in the National Plan. This National Plan acknowledges the unique needs and experiences of specific groups of older people, which it collectively refers to as ‘priority groups.’ These priority groups include, but are not limited to: 

• First Nations people

• People with lived and living experience of abuse and mistreatment

• Culturally and linguistically diverse (CALD) people, including migrants and refugees

• LGBTQIA+ people

• Women

• People with disability, recognising the social model of disability and the diversity of experiences within the disability community 

• People who experience mental ill health

• People with chronic health conditions

• Veterans and war widow(er)s

• People who live in remote or rural areas

• People who are financially or socially disadvantaged, including people who are homeless or at risk of homelessness

• People who are socially isolated

• People with low literacy (including low digital literacy or engagement). 

NLA agrees with the suggested priority groups but recommends the addition of people with diminished capacity in the list. NLA also notes the importance of ensuring that the priority groups are considered directly in the development of the priority actions and program logic, preferably through co-design, to ensure the Plan effectively addresses their specific needs.

To what extent do you agree that the key principles address a suitable range of areas for ending the abuse and mistreatment of older people? The 6 key principles that underpin the plan as a whole are:

• taking a human rights approach

• combatting ageism listening and learning from the experiences of older people and diverse communities

• focusing strongly on prevention and early intervention 

• supporting individual decision-making, autonomy and dignity

• taking a person-centred and trauma-informed response. 

NLA agrees with the suggested principles and recommends an additional principle regarding the importance of self-determination for First Nations communities and elders. 

To what extent do you agree that the focus areas address a suitable range of areas for ending the abuse and mistreatment of older people? These focus areas will guide work over the life of the plan, and are:

• Increase whole of community awareness, education and engagement.

• Enhance legal frameworks and adult safeguarding responses.

• Strengthen the capacity and capability of services, including through targeted education and training for professionals.

• Address gaps in the evidence base and increase collaboration. 

NLA agrees with the focus areas. However, in relation to the third focus area NLA notes the challenges created by the existing limitations of service delivery, particularly in regional and remote areas, and the need to identify and address service gaps to ensure all older people have access to affordable services. In addition, inability to meet restrictive access criteria and/or afford supports makes it difficult for older people who are seeking to escape abusive environments. 

Case study: Lack of support services and prohibitive access criteria

Alma* was brought to Australia on a sponsorship visa by her daughter. Even though she is of pension age, because she has only recently moved to Australia, she is not eligible for the aged pension. As such Alma relies solely on a special hardship payment from Centrelink.

Alma’s daughter is abusive towards her and has threatened to kick her out of the granny flat on the daughter’s property, but Alma has limited options due to lack of services for example alternative affordable or emergency accommodation, financial assistance.

*not her real name

LACs have experienced significant challenges in providing support to older people vulnerable to abuse as a result of severe limitations of services available in regional, rural and remote areas (RRR), particularly in jurisdictions such as WA, NT and Qld. Considering the vast area of some jurisdictions, even travelling to the nearest township simply to communicate with service providers can be an insurmountable barrier for many older people, particularly if they are reliant on the person(s) perpetrating the abuse for any transportation needs. Even if services are accessible by phone, this can still be a barrier for people with disability such as people with limited hearing, especially if they do not have appropriate assistive technology or equipment available. 

Case Study: Regional Client suffering financial abuse and future planning issues

Sarah* (96 years old) lives in the South West region of WA. Sarah has recently lost her vision and is not mobile or able to leave her house easily and has no living family in WA. A family friend got Sarah to sign a number of documents, potentially a will, Enduring Power of Attorney (EPOA) or Enduring Power of Guardianship (EPOG). Sarah did not wish this person to be involved, as she had cut off contact with Sarah and had potentially misused her funds, as she had access to Sarah’s bank card.

Sarah needed a new will drafted, however Elder Rights WA (ERWA) was unable to assist her with this matter, and there was a lack of services or supports that she could physically access in her area due to her vision and physical limitations. Further given Sarah’s isolation she did not have a suitable person to appoint under an EPOA or EPOG. ERWA was able to refer Sarah to services to provide assistance with her vision loss, as she had not yet received adequate visual aids which would have assisted her to read documents.

*not her real name

Despite the aspirations of this plan, realistically it will not even begin to tackle the abuse and mistreatment of older people if government and other relevant stakeholders do not progress tangible and timely actions to address critical factors such as the lack of affordable and appropriate housing. An increased reliance on virtual/digital services is also a practice which negatively impacts older people, particularly those living outside the metropolitan area. If addressing these broader community issues is an intention of the priority actions, then they must be explicitly documented in the Action Plans to follow. 

To what extent do you agree that the priority actions that accompany each focus area are suitable? Each focus area is underpinned by a series of priority actions. The priority actions in each focus area will inform the more detailed activities contained in the two 5-year Action Plans. Are there any change(s) to the priority actions that you would like to see inform the two 5-year action plans? 

Focus Area 2: Enhance legal frameworks and adult safeguarding responses

Priority Action 2.1 Continue efforts to achieve greater national consistency in enduring power of attorney laws 

• NLA notes that work towards harmonisation of EPOA legislation across the jurisdictions has been underway for many years and is unlikely to be implemented within the life of the first of the 5-year National Plans. As such, NLA strongly recommends that the Plan include interim measures for protection of older people who are the subject of EPOAs, as well as the attorneys themselves.
• For example, the Age Discrimination Commissioner has recommended measures such as a national campaign and resources to raise awareness of EPOAs as well as the development of national practices by banks and other financial institutions to develop safeguards for the use of EPOAs.
• At the very least, the Program Logic should include a short-term outcome of further consultation regarding interim measures to be implemented until harmonisation of EPOA legislations is achieved. 

Priority Action 2.4: Strengthen safeguarding frameworks and clarify pathways for abuse and mistreatment to be reported and addressed

• NLA notes that there are different levels of safeguards currently in place across the jurisdictions and recommends that the wording be broadened to reflect these different levels. For example, the draft Plan highlights the fact that the role of the ACT Discrimination, Health Services, Disability and Community Services Commissioner was expanded to include a new complaints function for abuse, neglect or exploitation of vulnerable people, including adults 60 years of age and older and adults with a disability (see below for a case study of the effectiveness of this safeguard). The Commissioner has investigation and mediation powers, and the ACT also passed the Crimes Amendment (Crimes Against Vulnerable People) Act 2020 creating criminal offences for individuals and institutions which harm, fail to protect or neglect older people. 
• However, there are currently no safeguards in place in some jurisdictions, such as WA. As such, there are no safeguard frameworks to be ‘strengthened’ in this jurisdiction as suggested by the wording of the Priority Action. The Priority Action could instead be to “Implement and strengthen safeguarding frameworks and clarify pathways for abuse and mistreatment to be reported and addressed”. 

Case Study: ACT Human Rights Commission

A service provider contacted the Commission out of concern for one of their clients, an elderly man in his 90s who was being targeted by a group of people who would come to his home and take him to the bank to get money. The older person was living with dementia and could not recall the details. The Commission worked with the police to ensure his bank was notified of the situation, additional measures were implemented to mitigate the risk of it happening again to the older person and the police investigated the matter to locate those involved. 

• In addition, given the lack of consistency of these safeguards between jurisdictions NLA recommends that the Plan make reference to the continued effort that will be required to work collaboratively and cooperatively under the National Plan. 
• NLA note the limitations of current legal remedies for some types of elder abuse and recommends the inclusion of priority actions and/or program logic outcomes to address this issue. For example, in NSW complaints about powers of attorney must be considered by the Supreme Court. Similarly, enforcement of a matter involving civil trespass also requires a decision of the Supreme Court. 

Case Study: Inaccessibility of legal remedies in NSW

Alice* 79 years was referred to LANSW Elder Abuse Service from the local Women’s Domestic Violence Court Advocacy Service. Alice owned the house she lived in, and her adult daughter and grandson lived downstairs. The daughter had poor mental health and had become increasingly verbally abusive. The daughter had cordoned off parts of the house and refused to allow Alice access to the downstairs section of the house. The daughter also refused to allow her son to visit the client upstairs.

Alice called the police after an incident and reported being fearful of the daughter’s escalating abuse. An AVO was issued but it still allowed for the daughter to remain in the house. Alice had asked her daughter to leave numerous times, but she had refused. Her daughter believed she had a right to remain in the property despite having no legal basis to this claim. The civil remedy for Alice was to commence proceedings in the NSW Supreme Court, which is time consuming, costly and complex. For the majority of vulnerable older people experiencing elder abuse in the 
home, the Supreme Court jurisdiction is inaccessible.

A similar situation arises for older clients who seek redress when their attorney misappropriates money under an EPOA. Again, in NSW the remedy is through the NSW Supreme Court. In many circumstances the cost of the proceedings outweighs any potential benefit.

*not her real name 

Priority Action 2.5: Explore enhancements to the role of institutions in preventing and 
responding to financial abuse

• NLA notes there is a lack of clarity regarding the use of the word “institutions” in the draft Plan. Clarification is required as to which institutions are being expected to enhance their role in preventing and responding to financial abuse, for instance does this mean financial institutions? 
• NLA notes that there are several references in the draft Plan to the issue of digital literacy amongst older people, however this issue is not specifically addressed in the priority actions (or program logic). NLA would recommend specifically including the need for financial institutions to ensure fair access to their services, as well as protections available to their customers, as a priority action and/or an outcome in the program logic.
• LACs have also had reports of family members taking the older person's card and linking it to a digital wallet on their phone for purchases. They only need access to the card for a very short time in order to do this and return it to the older person's usual location. Banking institutions must consider additional security steps for vulnerable clients, including careful monitoring of unusual purchases after a card is added to a digital wallet, and a register of authorised devices.

Case study: Appropriate banking products

LANSW’s Elder Abuse Service assisted Ivy*, an elderly woman who experienced financial elder abuse from her adult son. Ivy’s son repeatedly took her bank card and used the PayWave function to purchase goods. Sometimes it was for shopping that Ivy had asked her son to buy to save her having to go out, but most often it was purchases for the son’s use. Ivy’s son incurred an unauthorised debt of nearly $1,000 on Ivy’s account. Ivy reported this to the bank and asked for a card without a PayWave function. The bank told Ivy it could not provide a product without PayWave. A few weeks later, Ivy’s son stole the card and accrued a further debt of nearly $3,000. Ivy reported this to the police and the bank. The police declined to charge the son, and the bank told Ivy that as a family member used the card to process the transaction, the disputed transactions are a matter to be resolved between Ivy, the family member involved and the Police.

Banks should prioritise the financial safety of older people when developing banking products. A recent innovation in the UK* Companion card launched for carers supporting vulnerable customers | NatWest Group demonstrates how this can work. 

*not her real name 

Priority Action 2.6: Continue to implement the Australian Government’s response to the Aged Care Royal Commission, including through delivery of the new Aged Care Act, to protect and enhance the safety, health, wellbeing and quality of life for older people receiving funded aged care services

NLA recommends broadening this Priority Action beyond funded aged care services, given some people choose to engage alternate support services. 

Focus Area 3: Strengthen the capacity and capability of services, including through targeted education and training for professionals

• NLA notes that the wording of the Priority Actions under Focus Area 3 is relatively general and broad in scope, and as such it is difficult to provide specific comments on the proposed actions. It would be helpful if the Plan contained clearer articulation and/or definition of the intended purpose of the Focus Area. In addition, a more detailed explanation of how the Priority Actions will be implemented is required to provide more specific feedback.
• NLA highlights the need for integrated services to provide appropriate support for those at risk of and experiencing elder abuse. For example, legal assistance is particularly effective when provided in collaboration with social work support.

Priority Action 3.1: Identify best-practice quality and safety standards for specialist elder abuse services, with a view to increasing nationally consistent standards

• NLA notes that the draft Plan does not specify how safety standards will be implemented and/or monitored, which is likely to be quite challenging. In addition, NLA notes the need to recognise existing standards that services are already required to meet when implementing a new framework for nationally consistent standards.

Priority Action 3.2: Better target service responses and referral pathways designed to address the needs of people who cause harm to older people, informed by research (refer to Focus Area 4) 

• NLA recommends that this Priority Action is reframed to focus on an early intervention and prevention approach to people who may cause harm to older people, rather than a responsive approach to the perpetrators once the harm has occurred. There is a growing evidence base in Domestic and Family Violence (DFV) space regarding the effectiveness of behaviour change programs for perpetrators to support this recommendation to reframe the Priority Action.
• NLA also argues that is it not appropriate to have an action regarding support for people who cause harm to older people so early in the list, particularly given the limited services currently available to their victims. NLA recommends this action be move to later in the list of Priority Actions for Focus Area 3. 

Priority Action 3.4: Increase equity of access to specialist services by considering service types, geographical distribution and the needs of First Nations Peoples and other priority groups, including removing barriers to seeking help and support 

• NLA recommends that this Priority Action be reworded to more strongly reflect the current service delivery gaps, and the additional funding required to address them.

Priority Action 3.5: Strengthen the cultural competency and diversity of specialist service staff and embed a trauma-informed and culturally safe approach into a broad range of professional education re-sources relevant to preventing and responding to the abuse and mistreatment of older people 

• NLA recommends that this Priority Action should specifically recognise the importance of Aboriginal Community Controlled Organisations (ACCOs) in service delivery to First Nations communities and elders.

Case Study - Aboriginal woman living in a remote community

Shirley* (70 years old) lives in a remote location in the Kimberley region of WA. There was a suggestion from the bank and financial counsellor in the area that Shirley needed to apply for Guardianship and Administration (G&A) orders in relation to a different family member who was being financially exploited by others. There may have been more informal ways to manage this, but there was a lack of supports physically in that area to assist on the ground. There is only one financial counsellor as well, who may have had a conflict of interest in assisting further for example by making a State Administrative Tribunal (SAT) application. There are also no law firms in the area, only visiting lawyers.

Shirley is not versed in technology or able to go online and therefore would struggle to interact or understand the SAT and their purpose remotely, however SAT do not visit that remote area. The Office of the Public Advocate and Public Trustee are also unfamiliar offices that are a significant distance away in Perth. The LAWA office from that area conducted a home visit for ERWA, and the service then sent Shirley a letter but ultimately she did not appear to want to proceed with a SAT application. Access to an appropriate ACCO may have enabled Shirley to more comfortably engage with supports required to ensure she was not subject to financial abuse.

*not her real name

The Program Logic 

The short-term outcomes and benefits are good examples of SMART targets and goals.

• NLA notes that some of the outcomes are very broad and need to be clarified – what institutions? Which systems? The outcomes should be better defined in terms of what they are trying to do and who will be involved in/responsible for the implementation.
• NLA also notes current baselines will need to be established for all of the outcomes to enable progress to be measured. In addition, NLA notes that monitoring and evaluation of progress under the plan should be responsive to rapidly emerging trends. 
• NLA suggests including recommendations / actions from other related plans as program logic outcomes. For example, the short-term outcomes could include a review of criminal law in the context of elder abuse, as recommended in the recent research snapshot released by the Australian Institute of Family Studies (AIFS), Findings from the Evaluation of the National Plan to Respond to the Abuse of Older Australians (Elder Abuse) 2019–2023. (1)

Focus Area 2: Enhance legal frameworks and adult safeguarding responses NLA recommends the inclusion of additional outcomes such as:

• Develop interim measures for protection of older people who are the subject of EPOAs, as well as the attorneys themselves 
• Develop requirements for financial institutions to ensure access to service (not just technology based), as well as strategies to limit abuse through scams.

The medium-term outcomes and benefits are good examples of SMART targets and goals.

Focus Area 2: Enhance legal frameworks and adult safeguarding responses NLA recommends the inclusion of additional outcomes such as:

• Implement interim measures for protection of older people who are the subject of EPOAs, as well as the attorneys themselves.
• Implement requirements for financial institutions to ensure access to service (not just technology based), as well as strategies to limit abuse through scams. 

The long-term outcomes and benefits are good examples of SMART targets and goals.

Focus Area 3: Strengthen the capacity and capability of services, including through targeted education and training for professionals

NLA notes that the long-term outcomes for this Focus Area, “Services have sustained capacity and capability to deliver a person centred and trauma informed approach to prevent and respond to the abuse of older people”, is very aspirational, particularly given the lack of any specific funding commitment. It may be more realistic to reframe the outcome as “Services have improved capacity and capability to deliver a person centred and trauma informed approach to prevent and respond to the abuse of older people." 

(1) AIFS, Findings from the Evaluation of the National Plan to Respond to the Abuse of Older Australians (Elder Abuse) 2019–2023, page 3