Out of the shadows: a discussion on law reform for the prevention of financial abuse of older people

Financial abuse of older people too often lives ‘in the shadows, hidden by fear and shame’. This and the protective love between family members can screen changes that are critical to an older person’s financial and living arrangements. Rather than a single event, it is usually a series of well-intentioned but ill-considered financial acts, which at some point tips over into abuse interwoven with an intricate web of family relationships. Was a transfer of title or a loan to an adult child really misappropriation? Has thoughtlessness become undue influence or even theft? Seniors’ support agencies find that older people call for help after they have transferred money or property in the expectation of future housing and care from a younger family member. By then the money has usually gone, relationships have been destroyed and serious issues of health and homelessness have arisen. These situations are preventable and this is core to Seniors Rights Victoria’s legal education project – the prevention of financial abuse of older people in situations where assets have been transferred in exchange for care.This paper is the third of three publications produced for this project. The previous two were: ‘Assets for Care: A Guide for Lawyers to Assist Clients at Risk of Financial Abuse’, and a guide for older people: ‘Care for Your Assets: Money, Ageing and Family. Each of these publications reflects the experience and knowledge of Seniors Rights Victoria and the service’s rights-based, preventive approach. Prevention of financial abuse helps avoid deep personal anguish and can lessen the burden on services that respond to elder abuse.An examination of current law and its effectiveness together with discussion of and recommendations for law and policy reform, relevant to ‘assets for care’ scenarios, are this paper’s focus. Although some reform approaches are worthwhile, many shortcomings are systemic and cannot be dealt with through law reform alone, particularly given people’s reluctance to seek legal recourse for these complex and intensely personal family issues.