This article is part of our December theme, which focuses on one of the least appreciated but most fundamental aspects of well-being: housing. Read our Editorial for more on this theme.
The problem of elder abuse has come to be more clearly known through the efforts of many over the last 10 to 15 years. The problem is universal, though it takes a range of alarming forms: from accusations and persecutions of elderly women for witchcraft in sub-Saharan Africa to the marginalisation of the elderly by governments in Europe (Abuse of the Elderly).
Elder abuse can take physical, psychological and financial forms, any of which may be socially or institutionally entrenched. Disturbingly, in developed countries, elder abuse is said to be most frequently perpetrated by those in close relationships with the victim, including adult children and other family members (Older People and the Law).
Now that we have been alerted to the problem in abstract, a deep difficulty is evident: awareness of specific problems. The dependence and vulnerability of many older people means they may not personally bring a complaint, legal or otherwise. Given their family may be the very people engaged in exploitation, the conduct may remain hidden from others. Thus, the problem of awareness of elder abuse joins with the problem of elder isolation.
The World Health Organization has drawn attention to the possibility of detection of elder abuse in primary health care, given that even isolated or home-bound older people usually engage with medical professionals relatively often. Financial forms of abuse, however, are harder to detect in this way. As Les Jackson from the Elder Abuse Prevention Unit pointed out, there is concern that the GFC is becoming an increasing factor in financial abuse, which makes it particularly relevant at present. As the problem is multi-faceted, so too must be its solutions. I will begin, however, with some general observations on international law.
The idea of the dignity of all human beings, as appears in Article 1 of the Universal Declaration of Human Rights, and various subsequent instantiations in United Nations Covenants, naturally includes the elderly. Article 25 also refers to a right to security in old age. Elder rights are entailed though not explicit in international law, despite aspirational documents such as the United Nations Principles for Older Persons and the Proclamation on Ageing, both dating from the early 1990s. Efforts have been made, however, by a number of national and international organisations, to promote the creation of a new UN Convention dedicated to strengthening older people’s rights. A recent collaborative publication makes just that case. Such a convention would sit alongside existing treaties dedicated to children and women, both affirming the dignity and recognising the vulnerability of the elderly.
Vulnerability and the law in Australia
As in international law, protection of the elderly may be seen in more general protections afforded by the general law and legislation in Australia.
The particular situations I wish to highlight here are those in which older people are pressured into selling, gifting or otherwise putting at risk their homes, and therefore a fundamental component of their security and wellbeing. As property transaction must be in writing and signed, such agreements are governed by the law of contracts.
Whilst the starting point of contract law is the assumption (and ideal) of an independent and informed decision-maker, over the past few decades in particular, Courts have recognised that the dependence and vulnerability of certain people is important to deciding the validity of contractual agreements. If true consent is found wanting – consent being the very justification of contracts – the agreement will be set aside. This protection may be seen as based on the insight that vulnerability is part of the human condition, which the law cannot be blind to without risking substantive inequality and injustice. The relevance to older people is clear if one understands that dependence and vulnerability are, to some degree, inherent in life and more so in old age. Again, while not explicit, entailed in the law’s recognition of vulnerability is the protection of the elderly from financial abuse.
Situations involving exploitative conduct in relation to older people and their homes are evident in the following scenarios, all the subject of recent cases:
- Older people giving property to a family member or friend who acted unconscionably in eliciting the transfer (e.g. Janson v Janson ).
- Older people giving property to a family member or friend in exchange for an informal promise to live with them and be cared for, which is not honoured (e.g. Badman v Drake ).
- Older people offering their homes as security for a loan that benefits a family member or friend who subsequently fails to honour the loan, which gives the creditor a right to sell the house (e.g. Ford v Perpetual ; Fast Fix Loans v Samardzic ).
- Real estate agents or property developers pressuring older people to sell their homes, possibly at well below value, located in areas in which they wish to invest (e.g. Lampropoulos v Kolnik ).
In each of the cases listed above, the transactions were invalid due to the vulnerability of the elderly persons involved and/or the manipulation of the other party, whether in their conduct or in the terms of the contract itself.
The adequacy of law to fully accommodate all cases of elder abuse with respect to housing is doubtful, however, given the evidentiary demands that may not be met in some cases, despite the other party taking advantage of the elderly person. In particular, their vulnerability must be shown to be sufficiently evident. In some cases, despite dubious conduct, this may be difficult to show.
However, in all the cases mentioned, the courts displayed no hesitation in setting aside the contracts on the grounds of exploitation. In Badman v Drake, in particular, a strong presumption in favour of finding unconscientious conduct appears to have been in operation. In that case, Chief Judge (in Equity) Young of the New South Wales Supreme Court suggested:
It has almost become a rule of elder law that when one is dealing with an elderly person who is lonely and friendless, a person who befriends them must, if they are to gain a personal benefit, be extremely careful to ensure that there is no unworthy conduct.
Nonetheless, one may suggest a change is necessary within the current framework – confirming the rule alluded to by the Chief Judge and placing a burden on those who contract with the elderly for the transfer of their homes, to show the transaction is fair, just and reasonable. The modification of other doctrines may also be helpful. Susan Barkehall Thomas argues, for example, that where there is an informal agreement that the older person who transfers property will be cared for, the court should consistently presume a resulting trust (a personal obligation) arises.
Raising law and raising awareness
It is apparent, however, that these briefly contemplated reforms would not be drastic. The legal avenues available are already indicative of the fact that the law “sees” elder abuse (in seeing vulnerability). One of many and disparate legal doctrines is likely to cover situations involving exploitation of the elderly, though none are dedicated to that concern.
The law may be raised to a better view, but perhaps the bigger problem is that we, as a community, do not see elder abuse, so it cannot be brought into the sight of the law. In that respect, three things are important: first, awareness not only of specific problems, but also of legal rights; second, given that in many cases older people cannot afford to take legal action and legal aid is often limited in civil (as opposed to criminal) matters, more legal aid is clearly necessary; third, awareness on the part of solicitors of potential financial abuse, given their involvement in drafting contracts and witnessing signatures. This final point raises the question of the obligations on a solicitor whose client stands to benefit from such a transaction. To quote Chief Justice Young again, “it is impermissible for any solicitor to take the view that … they can just close their eyes to the fraud that may be being perpetrated on the vulnerable person”.
The problems of dependence and vulnerability, isolation and exploitation, detection and proof all combine to make elder abuse largely unseen and sometimes difficult to redress. The problem, in other words, is complex. But knowledge of the issue can lead to positive steps, including awareness of the possibility of elder abuse by medical and legal professionals, neighbours, family and the community in general; social efforts that foster active integration of the elderly; and possible law reform at both local levels – in view of the possible evidentiary problems and a lack of legal aid – and the international level, via a new UN convention. These would all assist in preventing the abuse of a growing and often vulnerable demographic. Deprivation of consent in dealing with housing is just one example, but correcting it is essential to the dignity and security of older persons.
I would like to thank Dr Jeannie Paterson, senior lecturer in contract law at Melbourne Law School, for her direction; and Les Jackson, coordinator of the Elder Abuse Prevention Unit in Queensland, for his helpful comments and those of unknown others at the EAPU, despite being busy assisting those suffering from financial abuse.