THE NEED FOR AUSTRALIAN CRIMINAL LAW REFORM TO PROTECT ELDERLY AUSTRALIANS AGAINST ABUSE

The Australian Bureau of Statistics have reported that Australia’s population is ageing at an incremental rate, and a recent National Prevalence Study into elder abuse found that a significant proportion of those older Australians are experiencing abuse. While it is important to recognise that older people are not inherently vulnerable, it is equally important to acknowledge the fact that many instances of abuse are falling through the cracks. Older people with distinct vulnerabilities, are at particular risk, and it is the right of every older Australian to age with dignity, respect, and to be afforded adequate protection from abuse. Despite the existence of criminal laws applicable to abuses including physical, social, psychological, and financial, very few matters relating to abuse of older people are prosecuted. This paper provides an overview of the legal framework in which abuse of older adults currently operates in Australia. It proposes that discrete criminal offences should be introduced to protect older adults who are reliant on others for their care


I INTRODUCTION
Australia's population is ageing.The Australian Bureau of Statistics ('ABS') have reported that within the 20-year period between 1999 and 2019, the proportion of people aged 65 years or older increased from 12.3% to 15.9%. 1 By 2066, it is projected to increase by around 20%, to more than a third of the nation's population. 2 Statistically, the prevalence of elder abuse in Australia is difficult to 36

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Vol 4 various concerns such as the abuse being regarded as a 'family' matter,11 that older people do not want to pursue legal action against family members, 12 and where the older person does want to proceed, they may not make a convincing witness, or there is an absence of proof. 13The lack of criminal cases proceeding, even in notorious cases, 14 demonstrates that the existing law is not utilised so as to ensure that older Australians can feel empowered, and supported by the law in the face of abuse. 15ilst it is important to recognise that older people are not inherently vulnerable, it is equally important to acknowledge the fact that many instances of abuse are falling through the cracks.There is much to be learned by looking at international legislative responses concerning abuse of older people, particularly in the United States of America ('US'), to inform the Australian approach. 16US laws directed at elder abuse call attention to improper conduct and behaviour, and target people who seek to take advantage of older people with distinct vulnerabilities within a wide range of contexts. 17cently, the Australian Capital Territory ('ACT') introduced new laws that serve to protect older vulnerable people in a criminal law context.This paper provides an overview of the legal framework in which elder abuse currently operates in Vol 4

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Australia, and discusses some of the possible issues behind why instances of elder abuse are falling through the gaps.It postulates that reform akin to those recently introduced into the criminal legislation in the ACT, 18 may accommodate more matters to successfully proceed in other states and territories across Australia, and also disincentive against elder abuse.

II THE INEFFECTIVENESS OF CURRENT LAW PROVISIONS TO PROTECT OLDER PEOPLE FROM ABUSE: IDENTIFYING THE GAPS A Rights of Older Australians
In Australia, the age of 65 is often used as an indicative number which assists in determining whether a person may be classified as being older (for example, the ABS). 19However, there is no bright line approach in measuring what age correlates with possible susceptibility to elder abuse, and many people in their sixties and seventies would not consider themselves to be in any way vulnerable.A person should not be denied a right to take advantage of their universal human rights and freedoms on the basis that they meet a definition of 'older'.Additionally, assumptions or stereotypes should not interfere with an older person's right to have their choices respected. 20knowledging this, there is, sadly, a growing body of research indicating that older Australians are being abused across a multitude of areas, ranging from assault, and neglect, to financial abuse, and fraud, and the factors influencing this are varied and complex. 21Though there is not a one size fits all solution, what cannot be disputed is that a good response will ultimately always centre around the needs of the older person themselves.This paper posits that older Australians with 18 Crimes Act 1900 (ACT) ss 36A, 36B, 36C.

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University of South Australia Law Review Vol 4 distinct vulnerabilities, who are at particular risk, 22 have a fundamental right to live a life free from abuse and neglect, and some of those abuses warrant a criminal justice response.

B Criminal Laws 1 Physical and Fault Elements
The small number of prosecutions arising from reported cases of elder abuse, 23 demonstrates there is an evident gap in the current criminal laws in Australia, 24 as they are not sufficiently empowering law enforcement to bring a successful proceeding, even in cases where evidence is able to be attained. 25One possible reason for this, is that criminal offences in Australia have elements relating not only to the act, but also to intent. 26Elements of criminal offending constitute both physical elements (actus reus, meaning the act or omission) 27 and fault elements, which are internal to the defendant (mens rea). 28For example, if a person caused another's death, and there is evidence of a physical act, but they had no intention to cause that death, then the fault elements of murder cannot be successfully made out, and they cannot be convicted. 29eting strict evidentiary thresholds to demonstrate the existence of internal fault elements such as intention, recklessness, knowledge, belief, or negligence, in the Vol 4 Vanessa Hutchens 41 context of elder abuse presents some challenges.30Sometimes, perpetrators of elder abuse go out of their way to keep their intentions hidden. 31Also, sometimes it may seem like consent has occurred authorising a specific action, whereas in reality the intentions of the perpetrator are not in the best interests of the victim.For example, in a case of financial abuse, where letters issued to a bank authorising large withdrawals are created without the knowledge of the account owner. 32Another aspect to consider, is the context in which these abuses are taking place, for instance in an aged care facility, or in the family home.The World Health Organisation ('WHO') has described abuse against older people as one that has always been 'societally hidden'. 33preferred method is to look at the overall conduct, and general behaviour of the abuser in cases of abuse of older people.That approach would more accurately capture cases of abuse that are being hidden from view. 34 all states and territories in Australia, the ACT is the only territory that has undertaken a first step in creating criminal offences into the Crimes Act 1900 (ACT) that may capture abuse of older people, with the inclusion of provisions such as: 'abuse of a vulnerable person', 35 as well as a 'failure to protect a vulnerable person from a criminal offence', 36 or to 'neglect a vulnerable person'. 37These apply to all people over the age of 18 years, however, importantly, the Crimes Act

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Vanessa Hutchens 43 bringing in external evidence from a bank teller, financial manager, or neighbour. 44here there are cognitive impairment issues, medical experts can counteract that by providing evidence that consent was not possible due to lack of capacity. 45Also, notably, as posited by Greenwood, the goal should be to show a profile of the complainant, and to contrast that profile with prior frugal behaviour, or with (possibly) lavish spending that occurred on behalf of the complainant, after interaction with the defendant. 46is analysis is in acknowledgement that, gaining evidence of intent in cases of neglect, psychological abuse, or sexual abuse may prove more challenging, especially in cases where an older witness does not want to come forward.

Financial Abuse and Enduring Powers of Attorney (a) Identifying the Abuse Issue
Financial abuse to an older person can be dealt with via statutory property offences, for example theft, 47 fraud, 48 or misappropriation of property.49However, as previously established, attaining evidence to prove these offences occurred can be problematic when the theft has taken place in a familial setting, or within a relationship of trust, because the victim may have a desire to maintain a relationship with the perpetrator. 50 A common method adopted by older people in Australia, is to appoint an EPOA.The appointment of a EPOA does not remove a donor's powers to manage and make decisions about their legal and financial affairs, it simply entrusts a delegated person to act on their behalf.A defining feature of an EPOA, is that the document continues to operate after a person loses capacity.To be legally incapacitated, 44 Ibid. 45Ibid. 46Ibid.means that someone is unable to understand the nature, and effect, of a legal document. 51This factor poses obvious issues: authority may be exercised recklessly, without care and diligence, or even criminally, where a person's money or assets are used in a way that is detrimental to the donor, without their knowledge or consent.
Pursuant to the Powers of Attorney and Agency Act 1984 (SA) section 7, the general duty of an enduring power is that the donee must exercise his powers as attorney, with reasonable diligence to protect the interests of the donor.Yet, if an EPOA abuses their position, the older person without capacity might not be aware.Further, if they are made aware of financial abuse that has taken place under the guise of an EPOA, they are left to navigate a fragmented, and bewildering legal landscape should they wish to pursue legal action, whether via criminal or civil means. 52

(b) R v Kerin: Junction between Misuse of an EPOA, and the Offence of Theft
There is an interesting cross section between the misuse of an EPOA, and the offence of theft, and factors such as honesty and consent come front and centre in determining whether an offence of theft has been committed.This can be seen in the case of R v Kerin [2013] SASCFC 56, a South Australian appeal against convictions of theft.The defendant transferred monies from an account of the donor (an elderly woman of almost 100 years, suffering from advanced dementia), 53 into an investment account to support share trading for a corporate entity the appellant had a personal interest in. 54e root of the appellant's case, was that the prosecution had not properly directed the jury as to the elements of theft. 55Specifically, whether section 134(3)(b) of the Criminal Law Consolidation Act 1935 (SA) (being that a person may commit theft of property by the misuse of powers given to them as an agent), substitutes a usual element of 'lack of consent', even in a case where the appellant may have misused their powers as an EPOA.In other words, utilising section 134(3)(b), 56 (which does Vol 4 Vanessa Hutchens 45 not mention the terms 'consent' or 'lack of consent') should not negate from meeting the elements of theft spelled out in section 134(1) of the Criminal Law Consolidation Act 1935 (SA). 57 Therefore, was it acceptable for the prosecution to direct the jury, and for the primary judge to accept a direction, that the elements of theft (relevant to the facts of that particular case) were, to deal with property: dishonestly; through misuse of powers vested in him (in place of 'without the owner's consent') 58 ; and intending to make a serious encroachment on the owner's proprietary rights? 59 It was held by Peek and Nicholson JJ that the primary judge erred in directing the jury that misuse of powers under a power of attorney, rather than a lack of consent, constituted an element of theft, because an intentional fault element of non-consent is always required. 60Gray J dissented, holding that:

To my mind, it was open to the jury to conclude beyond reasonable doubt that, in these circumstances, there has been a misuse of power, and that [the donor] did not consent to the transfer of her property to [the investment fund]. Not only do I consider that this conclusion was open, I go further; the prosecution case on this element of the offence was overwhelming. 61
Upon the upholding of the appeal, 62 the subsequent new trial before a judge alone (Blue J) sharply analysed the significance of the execution of a power of attorney in relation to the matter of consent.The accused contended that the power of attorney document authorised him to do anything the donor could have done personally, and that the scope of that authority is not bound to whether he was acting in the interests or for the purposes of the donor. 63is argument was rejected by Blue J, echoing the sentiments of Gray, Peek, and Nicholson JJ from the preceding appeal. 64Namely, that 'the significance of the execution of a power of attorney in relation to the matter of consent is not to be 62 Ibid.

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Vol 4 addressed by reference to the mere words of the document alone'. 65Further '[i]t will be necessary to have regard to the precise nature of the fiduciary relationship in the particular case to delineate the precise content of the duty'. 66As observed by Gray J: [i]t is to be accepted that the defendant, by the power of attorney, had the power to sell property of [the donor].It does not follow that the defendant had … consent to exercise that power in an uncontrolled manner so as to abuse her interests or misuse her property. 67cordingly, as held by Blue J, 'if the accused was acting in breach of his fiduciary duties by acting in the interests or for the purposes of himself or others and not those of [the donor], he was acting without … consent'. 68 These cases bring light to the fact that misuse of power under an EPOA can be closely aligned with offences of theft.However, to prove theft one is still bound to show an absence of consent, which, as postulated in both the appeal 69 and the new trial in the case of R v Kerin, 70 flows from an extent to which a donee has contravened fiduciary duties embodied within an instrument of trust.Also, the importance of Blue J's observation that section 134 of the Criminal Law Consolidation Act 1935 (SA) 'is enacted in the context and assumes the application of the general law which comprises both common law and equity', 71 which enabled a finding that a breach of fiduciary duty in line with section 7 of the Power of Attorney and Agency Act 1984 (SA), can fulfill the element of 'without consent' within an offence of theft. 72 This analysis reflects the complexity of the juncture of laws between misuse of EPOA documents, and offences of theft, even in cases where there is overwhelming evidence of a severe violation of an older person's wealth, and a It is important to consider the context in which a wrongdoing has taken place, and how this may affect an ability to make out an offence.If the abuse has taken place within a family setting, then this offers obvious challenges in that most people are deterred by the idea of suing a family member, or by reporting a family member. 73he notion that a family member may be, or indeed should be able to be found guilty of committing an offence within the ambit of financial abuse, is a relatively contentious one. 74Though, much like criminal laws in Australia have evolved in the area of sexual abuse, to ensure that allegations of rape can be made between spouses, 75 or within domestic violence laws that aim to protect against acts of violence in a spousal or domestic relationship, 76 laws should also evolve so that older people with distinct vulnerabilities, have a clearly delineated path to follow should they wish to take legal action.

C Civil Law Challenges 1 Distinguishing Civil from Criminal
Civil law actions are pursued to attain financial redress for the victim in the form of monetary compensation.This can be distinguished from a criminal proceeding because it is a private legal matter between parties, and not a matter for the state.
As such, it presents different challenges, generally involves negotiating theoretical and complex principles of law, and requires a high standard of proof. 77Further, the process of litigation is inherently expensive and time consuming.Factors such as language barriers, cognitive impairments, and absence of support networks (for example, people living in aged care facilities), can strategically and financially limit an applicant, minimising their chances of success.Older people face a plethora of distinct challenges should they choose to pursue legal action, and these challenges are exacerbated in the context of civil matters.Namely, the complexity of law, the limitation of some older people to travel to the offices of a legal practitioner, the cost of engaging with a lawyer, and the costly nature of litigation especially if the older person has suffered abuse concerning their wealth and assets. 78dly, even family members with good intentions, can place their older parents at risk.Holding the appointment of EPOA does require at least a basic understanding of financial management, and sometimes adult children will take on this role despite not knowing how to diligently manage their parent's financial affairs.This is especially the case where the adult child feels pressure to volunteer 'their expertise for the common cause', being their parents, irrespective of their experience, and unfortunately can lead to mismanagement that can result in significant financial losses for the older adult. 79

Dependencies Can Change with Age
Though age itself should not be directly correlated with vulnerability, 80 certain older adults are more vulnerable if they must rely on others for their care.That is a listed purpose of the Crimes (Offences Against Vulnerable People) Legislation Amendment Bill 2020 (ACT) ('the Bill'). 81In fact, the ACT's action to create specific offences for vulnerable people, is anchored in a commitment to prevent abuse of those with disabilities, and certain older people who are reliant on others for care or assistance. 82Non-vulnerable adults are not as susceptible to abuse that may result from a power imbalance within a relationship of care, and therefore are not covered in the ambit of the Bill.This makes sense, given the Bill's primary purpose is to protect the most vulnerable people in our communities. 78Wuth (n 30) 14.Vol 4

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The ALRC report 83 into elder abuse heard many cases of abuse by family members acting as carers. 84In one such case, an 80-year-old woman lost her spouse, but remained financially secure.She had no cognitive impairment, and managed her own affairs.Unfortunately, she suffered a bad fall, and broke her arm and leg which resulted in long stays in hospital.The long time spent in hospital with few visitors, resulted in her losing confidence in her ability to care for herself.When her son made her an offer to live with him and his family, she accepted.The offer depended on her selling her home, residing in a granny flat, and living solely off Centrelink payments.She was denied the right to independent legal advice regarding the financial arrangement, and sadly, after the arrangement transpired, the promised care and support was never provided, and the flat resulted in being utterly unsuited to her needs. 85erefore, it is important to recognise that abuse against older people is complex, and vulnerability can take many forms.This story captures the breadth of abuses that can take place, and the fact that the law needs to be nuanced enough to be able to capture abusive conduct occurring within a wide range of settings.An adult child offering physical care to their older parent, should not feel a sense of entitlement over their financial assets. 86

D Aged Care Facilities and the Coronavirus Pandemic
The pandemic has thrust into focus the importance of the rights of older people living within aged care facilities who may inherently be more susceptible to illness, 87 particularly because they rely on others to care for their physical needs.

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University of South Australia Law Review Vol 4 As an example, in Victoria, the state government imposed severe limitations on the entire state during the years of 2020, and 2021. 89When stage-four lockdowns were in place, no visitors at all were permitted into aged care facilities. 90Non-essential workers and contractors were completely banned from visiting. 91In fact, Victoria continues to impose limitations on the number of visitors permitted to attend aged care facilities, restricting it to five per resident, per day, requiring that each visitor return a negative rapid antigen test before entering. 92If there are no rapid antigen tests available, this limit becomes further restricted to two visitors per resident. 93deniably, there is a need to ensure that people living in aged care facilities are afforded adequate protection from COVID-19. 94Yet, the pandemic has placed older adults within these facilities in a powerless position.Aged care facility workers, who must comply with strict PPE requirements, intensive testing regimes, COVID-19 outbreaks, and short staffing, are being pushed to their limits.This raises genuine questions as to the wellbeing of those workers, and whether they are receiving adequate support. 95The sector is currently struggling to attract and retain workers, and this is partly due to the fact that the pay received by aged care workers

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Vanessa Hutchens 51 does not reflect the critical and demanding role they perform in the Australian community. 96In addition, it is unclear whether minimum staffing levels will be maintained as COVID-19 numbers continue to rise. 97en prior to the COVID-19 outbreak and the related pressures it has put on the aged care sector, The Royal Commission into Aged Care 'The Commission', 98 shone some light on stories of neglect: We have been told about people who have walked into an aged care residence, frail but in relatively good spirits and mentally alert, only to die a few months later after suffering from falls, serious pressure injuries and significant pain and distress.We have seen images of people with maggots feeding in open sores and we have seen video and photographic evidence of outright abuse. 99e Commission also highlighted a number of common negligent practises within certain aged care facilities, including inadequate prevention of management of wounds, sometimes leading to septicaemia and death, poor continence management, often leaving distressed residents sitting or lying in urine or faeces, dreadful food, nutrition, and hydration, as well as insufficient attention to oral health leading to widespread malnutrition, excruciating dental and other pain, and secondary conditions. 100 Undoubtedly, the pandemic has resulted in further instances of abuse within aged care facilities, due to residents' restricted access to the outside world.Thus, it should be a priority to instigate new investigations into elder abuse within these facilities in light of the pandemic, and also consider the introduction of new laws that will serve to combat these issues.There is certainly a pressing need for all states and territories to follow the ACT's lead and recognise that Australian criminal laws are inept in their ability to protect vulnerable adults, including older vulnerable adults, from abuses, and this is particularly pertinent for institutional care settings.
Recognising that, evidence suggests that abuse of older people often takes place in family settings, 104 and as such, physical elder abuse is closely related to family violence. 105and some have provisions relating to failure to report child abuses. 112In comparison, those distinct provisions are lacking for older vulnerable adults, and there are more reporting opportunities for children given their mandatory school attendance. 113he same reporting opportunities may not exist in settings where an older person is being cared for by an individual, or an organisation. 114 2018, the World Health Organisation ('WHO') reported that approximately one in six people aged sixty years and older experienced some form of abuse in community settings during the past year. 115It was also noted that this is an issue that is predicted to increase in countries experiencing rapidly ageing populations. 116ere is no doubt that Australia's population is ageing at a swift rate. 117Introducing laws such as those in the ACT, may offer 'the least restrictive measure' for 'deterring serious human rights abuses, protecting the most vulnerable members of 108 Ibid.
111 For example, the Criminal Law Consolidation Act 1935 (SA) s 50 (unlawful sexual relationship with a child), s 80 (abduction of a child under 16 years); Vol 4 our society from inhuman or degrading treatment', and also 'sends a strong message to the community that this type of behaviour will not be tolerated'. 118der abuse should be treated as seriously within the law as abuse of other vulnerable groups, such as children. 119It is important to educate people about the fact that abuse of older people is occurring, and encourage a culture where the dignity, rights, and freedoms of older people are celebrated and protected. 120

IV EXISTING PROTECTIVE PROVISIONS IN AUSTRALIA A Fundamental Role of the Criminal Law
The primary focus of the criminal justice system is prosecution, rather than seeking a remedy for the victim, with the exception of potential crimes compensation. 121It is worth recognising that for some people, seeking 'justice' transcends monetary compensation.One of the fundamentals of criminal law, is that it serves as a deterrent against criminal activity. 122Though this may sound like an obvious statement, it is important to note the distinction between the role of the criminal law, and that of civil law.The criminal law occupies a distinct role to discourage criminal behaviours that encroach on a fundamental right to protection and safety, and therefore assists in preventing abuses from occurring in the first place.

B Domestic Abuse Laws
One of the primary objects of the  120 Fanning Interview with Brian Herd (n 74).

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Vanessa Hutchens 55 marriage, or a domestic partnership. 125So, this could include a relationship between an adult child and their older parent.It also includes a relationship of 'in some other form of intimate personal relationship in which their lives are interrelated and the action of one affects the other'. 126Further, it includes a carer relationship via that meaning within the Carer's Recognition Act 2005 (SA) 'Carer's Act'. 127Unfortunately, however, the meaning of 'carer' within Carer's Act does not include a person who provides care or assistance under a contract for services. 128It does include informal care relationships, 129 but states that the role of carer exists in this capacity, if, because of frailty, a person requires assistance with the carrying out of everyday tasks. 130Certainly, there could be many instances of abuse taking place against older people who are not frail, but who still rely on assistance to execute everyday tasks.
In comparison, the Domestic and Family Violence Protection Act 2012 (Qld), is quite broad in its description of inclusive relationships.It incorporates 'relatives' (the South Australian legislation only includes relatives by blood), 131 and similarly takes into account informal care relationships. 132A relative can be a person who is understood to be connected to the person by blood, or marriage, and is defined as encapsulating a relationship with a child over the age of 18 years. 133It defines the meaning of an informal care relationship as one person being dependant on the other person for help in an activity of daily living. 134For example, as usefully listed within the statute: dressing, personal grooming, shopping, or telephoning a specialist to make a medical appointment. 135However, like the South Australian statute, it does not include relationships under a commercial arrangement.This is unfortunate, as, for example, a routine visit by a nurse to attend to an older person 125 Ibid s 8(8)(i).

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University of South Australia Law Review Vol 4 each day, operates under a commercial agreement between the person receiving the care, and the nurse's employer. 136e Domestic and Family Violence Protection Act 2012 (Qld) also refers to economic, emotional, and psychological abuse. 137This includes withholding of medication, as well as keeping a person from maintaining connections with friends and family. 138This is well delineated to allow older people experiencing abuse to utilise the legislation.
The South Australian Intervention Orders Act similarly includes an abuse of withholding medication, or prevention of the person to access medical treatment. 139t additionally includes an act of abuse that may result in an unreasonable and nonconsensual denial of financial, social or personal autonomy, including to sign a power of attorney, sign a contract of guarantee, or exercising an unreasonable level of control and domination over the daily life of the person. 140 Despite the existence of these provisions, the question remains: can the Intervention Orders Act afford older vulnerable people adequate protection?Certainly, if an older person is experiencing domestic abuse, whether it be physical, psychological or financial, and they would like an intervention order issued, they may find a way through the Intervention Orders Act.However, the Intervention Orders Act seems more geared (and importantly so) toward preventing domestic abuse within intimate relationships.A relationship defined as 'through marriage' is not clear in indicating whether this may include a relationship between an older parent and their son or daughter in law. 141Importantly, there is an obvious issue in that older people with inherent vulnerabilities, may be reluctant to apply for an intervention order from a person they rely on for their care.This is a significant factor to consider, given that when an intervention order is issued in respect of an intimate domestic relationship between two younger adults, generally speaking, both those adults maintain financial earning capability.Conversely, older adults with inherent vulnerabilities may be fearful to separate themselves from a relationship of abuse, if they feel they might not secure adequate ongoing financial 136 Domestic and Family Violence Protection Act 2012 (Qld) ss 20(1), (3).

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Vanessa Hutchens 57 support, or might not be able to find suitable housing after the order has been issued.

C Financial Abuse of Older Vulnerable Adults: Current Criminal Legislative Deterrents 1 The General Offence of Theft
As previously identified, to successfully find someone guilty of theft beyond reasonable doubt in Australia, strict elements need to be met. 142For example, and as previously delineated through an analysis of R v Kerin [2013] SASCFC 56, in South Australia a person may be found guilty of theft if they deal with property dishonestly, without the owner's consent, and with the intention to deprive the owner permanently of the property. 143 However, even in a setting where an older person's finances are being used indecorously by an adult child, the intimate family space in which theft is potentially occurring, makes these elements tricky to prove. 144For instance, if an adult child asks to borrow, say, $1,000 from their older parent, and promises to pay them back (but they never do), was it their intention to permanently deprive them of that wealth?If an older person trusts their adult child to draw money from their bank account on their behalf every week, and their child habitually takes some for themselves, is this without consent?
Cases of minor, and sometimes, major theft, can be incremental and pervasive.Thus, even if an elderly person's child is clearly engaged in theft, the process of gathering evidence to prove a possible offence akin to those just described, can be very difficult.Pursuing an action in civil law does not serve as a viable alternative to criminal law, because the focus is on seeking a remedy for the client, rather than prosecution of the perpetrator. 163Further, the onus is on the person affected to bring an action at their own cost, which is not always feasible given the high expense of accessing the legal system. 164Mainly, it does not serve to disincentivise a culture of elder abuse, and does not provide any reinforcement to protect elderly citizens from being financially exploited. 165ol 4 Vanessa Hutchens 61 (c) Assets for Care Arrangements Some older people may feel compelled to depart with aspects of their wealth due to situational pressures.This does not necessarily occur under the umbrella of undue influence, or unconscionable bargain, it can be a courteous agreement between family members.Yet, it often occurs in the absence of a formal, legal contractual agreement. 175Asset transfers that are intended as part of an 'assets for care arrangement' (where in exchange for an older person's transfer of property, an adult child may promise to care for them care for life), can place an older person at risk of losing a property investment, or their financial contribution towards a property. 176 noted by Somes and Webb: 177 An older person, no matter how cognizant and capable of maintaining their own affairs, may be vulnerable to the persuasion of family or in the aftermath of a significant life event such as the loss of a spouse.
If land is transferred from an older person to an adult child, and the child becomes the registered proprietor, then their interest is indefeasible, unless an exception to indefeasibility applies. 178This exception could be, for example, fraud, or in personam, but both are difficult to establish.Vanessa Hutchens 63 response to concerns about community social services for older people, 186 and this was the first federal level legislative proposal to provide comprehensive services to older adults.It was re-authorised in 2020, to carry through until the 2024 financial year. 187Initiatives aim to address aging and disability resource centres, 188 assistive technology, 189 vaccination, 190 and malnutrition, 191 to name just a few.Elder law, and elder abuse, is a topic that is being frequently assessed by the American Bar Association, 192 and many states across the US have legislated to create discrete offences for abuse of older vulnerable adults.This is a summary of some of the major legislation that exists across a selection of states, and is by no means an exhaustive list.
In New York, endangering the welfare of a vulnerable elderly person is an offence. 193A person can be found guilty of this offence if they, as a caregiver, act with intent to cause physical injury, or cause such, via recklessness or criminal negligence. 194 California, elders are identified as a distinct class, along with dependent adults, and persons with disabilities. 195A person who 'wilfully causes or permits an elder to suffer, or inflict unjustifiable physical pain or mental suffering upon the elder or dependent adult', can face one year in county jail, or a $6,000 fine. 196There is also an offence of financial abuse of an elder or dependant adult, which can occur if a 36 University of South Australia Law Review Vol 4 person assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependant adult for a wrongful use or with intent to defraud, or both. 197mparatively, Indiana has explored financial abuse insofar as criminalising exploitation of a dependent or 'endangered adult', 198 with a separate offence for financial exploitation of an endangered adult. 199egon has extensive laws addressing abuse of older people, including financial exploitation, being the wrongful taking of assets, funds or property belonging to, or intended for, the use of an elderly person, or a person with a disability. 200Oregon law protects vulnerable people from a broad range of abuses and neglect, and a 'vulnerable person' includes a person aged 65 years or older. 201 Iowa, there are specific legislative provisions relating to 'dependant adult' abuse resulting from wilful or neglectful acts or omissions of a caretaker, including a provision for the deprivation of the minimum food, shelter, clothing, supervision, physical, or mental health, and other care necessary to maintain a dependant adult's life. 202It is an offence to neglect, or non-support a dependent adult. 203 North Carolina, there is a law targeting conduct around domestic abuse, neglect, and exploitation of disabled, or elder adults. 204In Illinois, there are provisions pertaining to neglect of an elderly person, or a person with a disability. 205 the US, June 15 has been declared 'World Elder Abuse Day', and is marked in Washington DC with a Presidential Announcement, in conjunction with the White Vol 4 Vanessa Hutchens 65 House Conference on Ageing. 206Public awareness about elder abuse is seen as an integral factor to shift the culture in the US, away from ageism. 207der abuse laws are not new in the US. 208When the White House Select Committee on Ageing released a report in 1981, labelled 'The Hidden Problem Report', the Committee estimated that, in any given year, possibly one in every twenty-five elderly Americans would become victims of elder abuse. 209 1998, the National Centre on Elder Abuse conducted a study on financial abuse of the elderly, and found that of 45,000 reports of many types of elder abuse, approximately 40% of those were of financial abuse. 210The encouraging prospect of federal funding, led to many states revising their procedures, 211 in particular California, who have initiated multiple laws in respect of elder abuse. 212The US have made a concentrated effort, to enact criminal laws in response to what occurred in the 1990's. 213ere are also initiatives being undertaken on a state level.For example, Illinois has supported an extensive public education program to produce 'age awareness' toolkits to educate the public about the importance of minimising elder abuse within their communities. 214ol 4

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The sad and appalling case of Janet Mackozdi, further highlights the importance of adequate institutional safeguarding strategies. 235Janet Mackozdi was found deceased in a derelict shipping container in Mount Lloyd, Tasmania, in 2010.At the time of her death, she was 77 years of age, weighed 37.9 kilos, and was suffering from advanced dementia.Her daughter, Mrs Anglin (a nurse), and her son in law, Mr Anglin (a disability support worker), put Ms Mackozdi to bed in the shipping container on an evening where the temperature below zero degrees, in absence of adequate clothing and bedding.As a result, Ms Mackozdi suffered from hypothermia which led to her death. 236Ms Mackozdi lost 28% of her body weight in the 12-month period preceding her death, and despite it being shown that she was clearly in need of regular medical attention, she had very little contact with any independent services. 237 Ms Mackozdi did have a financial planner, who in testimony, confirmed that financial support provided to Ms Mackozdi's daughter, Mrs Anglin, was influenced by Ms Mackozdi's desire to see her grandchildren. 238Two years prior to Ms Mackozdi's death, a clearly expressed and fluent letter was received by Ms Mackozdi's bank.It asked that she not be questioned about any recent account transactions. 239The bank accepted this letter as being written by Ms Mackozdi, when it had in fact been produced by Mr and Mrs Anglin, and Ms Mackozdi's funds were continually withdrawn.In fact, three banks holding the entirety of Ms Mackozdi's funds were almost completely depleted, with withdrawn funds totalling around $200,000. 240The money was used by Mr and Mrs Anglin on a wide variety of things from basic living expenses, to luxury items. 241Mr and Mrs Anglin admitted that they were responsible for the withdrawals, but maintained Ms Mackozdi permitted them that money, because the funds were Mrs Anglin's inheritance, which she believed she was entitled to. 242ol 4 Vanessa Hutchens 71 amounts to criminal behaviour or not). 249This is without doubt, a step in the right direction, because what's clear is that despite an observed increase in the number of reports raising serious concerns over the number of older people, and people with disabilities, experiencing abuse, that previously other agencies did not have the power to investigate those reports. 250Gaining Further Perspective: South Australia's Adult Safeguarding Unit In 2018, the Office for the Ageing (Adult Safeguarding) Amendment Bill 2018 (SA) was passed, a first of its kind in Australia.The Adult Safeguarding Unit is aimed at providing confidential information and advice to callers who may be experiencing elder abuse, as well as respond to reports of suspected, or actual abuse.Once a report has been made, actions to be taken can be to either refer the matter to another relevant service, compile more information about the issue, or work with the person to develop a safeguarding plan. 251Consequently, this body are working on gaining a clearer picture of the number of elder abuse cases existing in South Australia, and the nature of the reported instances.This, may assist in determining what type of protective legislative provisions may be appropriate in South Australia, to enable victims of elder abuse clearer recourse, and better protection.
VIII MANDATORY REPORTING, AND THE ALRC'S SUGGESTED POA REGISTER GP's can play a vital role in the identification and prevention of elder abuse.In the US, mandatory reporting laws apply in all states except for New York.The groups of people required to report in circumstances where elder abuse is suspected are extensive.They include doctors, bank employees, dentists, social workers, clergy, and many more (they vary from state to state). 252The existence of these laws encourages reporting, should it be suspected that a person may be subject to elder abuse.Australia could benefit from mandatory reporting of suspected abuse of older people, particularly physical abuse or neglect.Financial abuse is harder to detect, and therefore mandatory reporting in this area may prove more problematic.

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Vanessa Hutchens 73 from a generic body of law that exists to deter abusive behaviours, to specifically discourage abuse of older vulnerable people.Additionally, an offence such as abuse of a vulnerable person (including an older person with a distinct vulnerability), may serve as an extra disincentive, supplementary to the laws general laws that already exist.To juxtapose that position, if the quantity of successful criminal prosecutions of elder abuse were to be used as a metric in assessing the effectiveness of the current criminal provisions, then Australia is clearly failing.
There are some that argue that the creation of a discrete offence of 'abuse of a vulnerable person' (including older people), such as that in the ACT, may make instances of elder abuse more difficult to prosecute. 258Specifically, in line with the view of the ALRC, that these provisions already exist: an assault is an assault, and the creation of a new offence addressing elder abuse may generate higher bars for prosecutors to jump over in proving an offence. 259Moreover, that if the abuse is against an older person, then that can be considered an aggravating factor in sentencing. 260This paper conversely concludes, that an offence such as assault does not accurately capture the conduct of a person who has, within a relationship of trust, violated that trust to commit the assault, especially in a situation where there is a clear power imbalance between the perpetrator and the victim.Also, for an offence to be aggravated, an offence still needs to be proven, and meeting strict elements for offences can be problematic for older people for a range of reasons outlined in this paper.
It is not acceptable that even in instances of serious neglect of an older person, where there is available evidence, that a case is unable to proceed. 261Is it also notable and significant, that in a case where a person has clearly used their position as an EPOA to the extreme financial detriment of an elderly person with dementia, 262 that this can result in multiple trials and a complex appeal before arriving at a conviction of theft.It certainly begs the question of whether a discrete

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Online / Telephone FraudEvidence suggests that the COVID-19 pandemic has increased instances of fraudsters targeting older people over the phone, and on the internet, prying on their Vol 4 It's important to distinguish a discrete offence from an offence being categorised as an aggravated offence.As an example of what this means, in South Australia the Criminal Law Consolidation Act 1935 (SA) section 5AA(1)(f) may denote the creation of an aggravated offence if the offender knew the victim was over the age of 60 years at the time of the offence.Nonetheless, it is still required that an offence is made out before it can be deemed to be 'aggravated', and elements contained within offences such as assault, theft, and neglect, even if inflicted upon a 'vulnerable person' 39 require strict physical and fault elements to be met.This process can offer distinct challenges within the scope of abuse to an older vulnerable adult, because attaining evidence can be challenging if the abuse has taken place in a context that is hidden from view.
40Another perceived challenge to proving elements of criminal offences, is an older person's ability to present as a witness. 41 presenting older witnesses can in fact be an evidentiary strength often overlooked by prosecutors.42AsnotedbyGreenwood,olderpeoplecanhave significant, and genuine jury appeal.43Iftheydisplayforgetfulness,thisbarrier can be overcome by refreshing memory, or38Within the Crimes Act 1900 (ACT), vulnerable person is defined as an adult who (a) has a disability; or (b) is at least 60 years old and -(i) has a disorder, illness or disease that affects the person's thought processes, perception of reality, emotions or judgment or otherwise results in disturbed behaviour; or (ii) has an impairment that -(A) is intellectual, psychiatric, sensory, or physical in nature; and (B) results in a substantially reduced capacity of the person for communication, learning or mobility; or (iii) for any other reason is socially isolated or unable to participate in the life of the person's community.39TheCriminal Law Consolidation Act 1935 (SA) s 13B defines 'vulnerable adult' as a person aged 16 years or above who is significantly impaired The Proctor 36, 37; Nola Ries, 'When Powers of Attorney Go Wrong: Preventing Financial Abuse of Older People by Enduring Attorneys' (2018) 148 Precedent 9, 9-13.
As observed in the Explanatory Statement to the ACT's Crimes (Offences Against Vulnerable People) Legislation Amendment Bill 2020, 109 there is a comparison to be drawn from the range of existing criminal, and non-criminal laws in place [in the ACT] that target abuse and/or exploitation of children.110Allstates and territories in Australia have legislative provisions pertaining to child abuse, 107Moreover, that 'older people face… a reluctance to report the violence because of shame[and]fear of not being believed', and factors such as 'financial reliance on the perpetrator, a desire to preserve family relationships,[and]fears about who will care for them', can detract from an older person's desire to come forward and report abuse.The Family Violence Report asserts that preventing violence against older 162pite financial elder abuse being a prevalent issue,160criminal laws are rarely utilised in instances of abuse of older vulnerable adults161and many older people experiencing financial abuse that could be categorised as criminal, are largely left with only civil legal remedies to pursue.162