Financial abuse and older people with impaired capacity: A secondary analysis of Tribunal files

The management of the financial assets of older people is of increasing concern to researchers, practitioners and policy-makers as older people seek to self provide for long periods of retirement, conserve assets for user charges and ensure choice in accommodation, health and lifestyle. This research is part of a broader research project funded by the Australian Research Council that explores and describes the prevalence and practices of non-professional asset management for and on behalf of older people. This thesis focuses upon abusive asset management practices in relation to a vulnerable group of older people with impaired capacity. Despite the vulnerability of this particular group of older people to financial abuse, research in the area is still under-developed. The exploratory and descriptive research design is based on an analysis of data from 234 cases heard by the Guardianship and Administration Tribunal in Queensland, Australia in 2002/3. Access to the Tribunal files enabled an exploration of a usually hidden form of elder abuse and afforded a rich source of data. The research questions explore the nature and extent of financial abuse processes; the concerns that bring financial abuse of older people with impaired capacity to the attention of the Tribunal; the characteristics of the older person that makes them vulnerable to financial abuse; the processes of asset management associated with such abuse and the characteristics and practices of the abuser. The analysis identifies two types of case – suspected financial abuse and non-financial abuse cases. Bi-variate and multi-variate analysis (logistic regression) seeks to determine statistically significant differences between the two types of case and the relationships between the ranges of variables identified from the elder abuse literature. The text in the Tribunal files is used to illustrate aspects of the quantitative data. Suspected financial abuse was identified in about 26% (n=60) of the Tribunal cases sampled. It was noted that financial abuse could occur inadvertently from lack of knowledge about proper asset management practices as well as intentionally. Abuse cases were commonly referred to the Tribunal after financial abuse had occurred and the abuse was noticed usually as a result of some unusual behaviour or conflict that made the application-maker pay closer attention to the older person. Financial abuse happened, irrespective of gender, age, type of impaired capacity, marital status and location (community/care facility) of the older person with impaired capacity. Having access to the older person’s assets, not access to the older person was of primary importance for financial abuse to occur. Close family, particularly adult children, were the predominant financial abusers. Formal arrangements to manage assets such as the Enduring Power of Attorney did not protect the older person from financial abuse and in fact, was the means used to perpetrate the financial abuse in some of the financial abuse cases. Care is taken to limit generalisations to the population of interest: older people with impaired capacity who come to the attention of the Tribunal. These findings challenge some current understandings in the literature about such abuse and highlight the limitations of existing policies, practices and theoretical approaches. Routine Activities theory is proposed as useful for theorising this type of elder abuse and for developing appropriate interventions. A multi-level framework of individual, structural, legal and social responses that cater for the prevention, detection and, if needed, the deterrence of financial abuse is suggested. Recommendations for such policy and practice interventions focus upon the three levels of preventing financial abuse, detecting it and responding to it. Different recommendations are suggested for the different types of financial abuse that emerged from the Tribunal data. Some strategies proposed include raising community awareness about good asset management practices and clarifying who owns the older person’s assets; encouraging family asset managers to use appropriate asset management practices by providing easily accessible education and training; the development of consistent and collaborative protocols and training for aged care workers in relation to preventing, detecting, monitoring and responding to suspected financial abuse; the proposal for the establishment of dedicated protective service workers; encouraging financial institutions to become engaged in monitoring for financial abuse and reviewing current policies in relation to the lack of safeguards surrounding the Enduring Power of Attorney

Enduring Powers of Attorney: Promoting attorneys' accountability as substitute decision makers

Aim The misuse and abuse of Enduring Powers of Attorney (EPAs) by attorneys, particularly in relation to financial decision-making, is a growing concern. This paper explores the opportunities to enhance accountability of attorneys at the time of the execution of the document in Queensland. Method A four stage multi-method design comprised a critical reference group; semi-structured interviews with 32 principals or potential principals, attorneys and witnesses; two focus groups with service providers and a state wide survey of 76 principals, attorneys and witnesses. Results Across all methods and user groups, understanding the role and obligations of the attorney in an EPA was consistently identified as problematic. Conclusions Promoting accountability and understanding can be addressed by greater attention to the role of the attorney in the forms/ guidelines and in the structure and witnessing of the forms, increased direction about record keeping and access to appropriate advice and support

Enduring documents: improving the forms, improving the outcomes

Most Australian states have introduced legislation to provide for enduring documents for financial, personal and health care decision making in the event of incapacity. Since the introduction of Enduring Powers of Attorney (EPAs) and Advance Health Directives (AHDs) in Queensland in 1998, concerns have continued to be raised by service providers, professionals and individuals about the uptake, understanding and appropriate use of these documents. In response to these concerns, the Department of Justice and Attorney-General (DJAG) convened a Practical Guardianship Initiatives Working Party. This group identified the limited evidence base available to address these concerns. In 2009, a multidisciplinary research team from the University of Queensland and the Queensland University of Technology was awarded $90,000 from the Legal Practitioners Interest on Trust Account Fund to undertake a review of the current EPA and AHD forms.\ud \ud The goal of the research was to gather data on the content and useability of the forms from the perspectives of a range of stakeholders, particularly those completing the EPA and AHD, witnesses of these documents, attorneys appointed under an EPA, and health professionals involved in the completion of an AHD or dealing with it in a clinical context. The researchers also sought to gather information from the perspective of Aboriginal and Torres Strait Islander (ATSI) individuals as well people from culturally and linguistically diverse (CALD) groups. Although the focus of the research was on the forms and the extent to which the current design, content and format represents a barrier to uptake, in the course of the research, some broader issues were identified which have an impact on the effectiveness of the EPA and AHD in achieving the goals of planning for financial and personal and health care in advance of losing capacity.\ud \ud The data gathered enabled the researchers to achieve the primary goal of the research: to make recommendations to improve the content and useability of the forms which hopefully will lead to an increased uptake and appropriate use of the forms. However, the researchers thought it was important not to ignore broader policy issues that were identified in the course of the research. These broader issues have been highlighted in this Report, and the researchers have responded to them in a variety of ways. For some issues, the researchers have suggested alterations that could be made to the forms to address the particular concerns. For other issues, the researchers have suggested that Government may need to take specific action such as educating the broader community with some attention to strategies that engage particular groups within communities. Other concerns raised can only be dealt with by legislative reform and, in some of these cases, the researchers have identified issues that Government may wish to consider further. We do note, however, that it is beyond the scope of this Report to recommend changes to the law.\ud \ud This three stage mixed methods project aimed to provide systematic evidence from a broad range of stakeholders in regard to: (i) which groups use and do not use these documents and why, (ii) the contribution of the length/complexity/format/language of the forms as barriers to their completion and/or effective use, and (iii) the issues raised by the current documents for witnesses and attorneys.\ud \ud Understanding and use of EPAs and AHDs were generally explored in separate but parallel processes. A purposive sampling strategy included users of the documents as principals and attorneys, and professionals, witnesses and service providers who assist others to execute or use the forms. The first component of this study built on existing knowledge using a Critical Reference Group and material provided by the DJAG Practical Guardianship Initiatives Working Party. This assisted in the development of the data collection tools for subsequent stages. The second component comprised semi-structured interviews and focus groups with a targeted sample of current users of the forms, potential users, witnesses and other professionals to provide in-depth information on critical issues. Outreach to Aboriginal and Torres Strait Islander Elders and individuals and workers with CALD groups ensured a broad sample of potential users of the two documents. Fifty individual interviews and three focus groups were completed. Most interviews and focus groups focused on perceptions of, and experiences with, either the EPA or the AHD form. In the interviews with Indigenous people and the CALD focus groups, however, respondents provided their perceptions and experiences of both documents. In general, these respondents had not used the forms and were responding to the documents made available in the interview or focus group. In total, seventy-seven individuals were involved in interviews or focus groups. The final component comprised on-line surveys for EPA principals, EPA attorneys, AHD principals, witnesses of EPAs and AHDs and medical practitioners with experience of AHDs as nominated and/or treating doctors. The surveys were developed from the initial component and the qualitative analysis of the interview and focus group data. A total of 116 surveys were returned from major cities and regional Queensland. The survey data was analysed descriptively for patterns and trends. It is important to note that the aim of the survey was to gain insight into issues and concerns relating to the documents and not to make generalisations to the broader population

Enduring documents: improving the forms, improving the outcomes

Most Australian states have introduced legislation to provide for enduring documents for financial, personal and health care decision making in the event of incapacity. Since the introduction of Enduring Powers of Attorney (EPAs) and Advance Health Directives (AHDs) in Queensland in 1998, concerns have continued to be raised by service providers, professionals and individuals about the uptake, understanding and appropriate use of these documents. In response to these concerns, the Department of Justice and Attorney-General (DJAG) convened a Practical Guardianship Initiatives Working Party. This group identified the limited evidence base available to address these concerns. In 2009, a multidisciplinary research team from the University of Queensland and the Queensland University of Technology was awarded $90,000 from the Legal Practitioners Interest on Trust Account Fund to undertake a review of the current EPA and AHD forms. The goal of the research was to gather data on the content and useability of the forms from the perspectives of a range of stakeholders, particularly those completing the EPA and AHD, witnesses of these documents, attorneys appointed under an EPA, and health professionals involved in the completion of an AHD or dealing with it in a clinical context. The researchers also sought to gather information from the perspective of Aboriginal and Torres Strait Islander (ATSI) individuals as well people from culturally and linguistically diverse (CALD) groups. Although the focus of the research was on the forms and the extent to which the current design, content and format represents a barrier to uptake, in the course of the research, some broader issues were identified which have an impact on the effectiveness of the EPA and AHD in achieving the goals of planning for financial and personal and health care in advance of losing capacity. The data gathered enabled the researchers to achieve the primary goal of the research: to make recommendations to improve the content and useability of the forms which hopefully will lead to an increased uptake and appropriate use of the forms. However, the researchers thought it was important not to ignore broader policy issues that were identified in the course of the research. These broader issues have been highlighted in this Report, and the researchers have responded to them in a variety of ways. For some issues, the researchers have suggested alterations that could be made to the forms to address the particular concerns. For other issues, the researchers have suggested that Government may need to take specific action such as educating the broader community with some attention to strategies that engage particular groups within communities. Other concerns raised can only be dealt with by legislative reform and, in some of these cases, the researchers have identified issues that Government may wish to consider further. We do note, however, that it is beyond the scope of this Report to recommend changes to the law. This three stage mixed methods project aimed to provide systematic evidence from a broad range of stakeholders in regard to: (i) which groups use and do not use these documents and why, (ii) the contribution of the length/complexity/format/language of the forms as barriers to their completion and/or effective use, and (iii) the issues raised by the current documents for witnesses and attorneys. Understanding and use of EPAs and AHDs were generally explored in separate but parallel processes. A purposive sampling strategy included users of the documents as principals and attorneys, and professionals, witnesses and service providers who assist others to execute or use the forms. The first component of this study built on existing knowledge using a Critical Reference Group and material provided by the DJAG Practical Guardianship Initiatives Working Party. This assisted in the development of the data collection tools for subsequent stages. The second component comprised semi-structured interviews and focus groups with a targeted sample of current users of the forms, potential users, witnesses and other professionals to provide in-depth information on critical issues. Outreach to Aboriginal and Torres Strait Islander Elders and individuals and workers with CALD groups ensured a broad sample of potential users of the two documents. Fifty individual interviews and three focus groups were completed. Most interviews and focus groups focused on perceptions of, and experiences with, either the EPA or the AHD form. In the interviews with Indigenous people and the CALD focus groups, however, respondents provided their perceptions and experiences of both documents. In general, these respondents had not used the forms and were responding to the documents made available in the interview or focus group. In total, seventy-seven individuals were involved in interviews or focus groups. The final component comprised on-line surveys for EPA principals, EPA attorneys, AHD principals, witnesses of EPAs and AHDs and medical practitioners with experience of AHDs as nominated and/or treating doctors. The surveys were developed from the initial component and the qualitative analysis of the interview and focus group data. A total of 116 surveys were returned from major cities and regional Queensland. The survey data was analysed descriptively for patterns and trends. It is important to note that the aim of the survey was to gain insight into issues and concerns relating to the documents and not to make generalisations to the broader population

Managing older people's money: Assisted and substitute decision making in residential aged-care

Current approaches to the assessment of cognitive capacity in many jurisdictions seek to balance older people’s empowerment with their protection. These approaches incorporate a presumption of capacity, a decision-specific rather than global assessment of that capacity, and an obligation to provide the support needed for adults to make or communicate their own decisions. The implication is that older people are assisted to make decisions where possible, rather than using substitute decision makers. For older people, decision making about financial matters is a contentious domain because of competing interests in their assets and concerns about risk, misuse and abuse. In residential-care settings, older people risk being characterised as dependent and vulnerable, especially in relation to decisions about financial assets. This paper reports an Australian study of the factors that facilitate and constrain residents’ involvement in financial decision making in residential settings. Case studies of four aged-care facilities explored how staff interpreted the legislative and policy requirements for assisted and substitute decision making, and the factors that facilitated and constrained residents’ inclusion in decisions about their finances. The observed practices reveal considerable variation in the ways that current legislation is understood and implemented, that there are limited resources for this area of practice, and that policies and practices prioritise managing risk and protecting assets rather than promoting assisted decision making

Understanding Financial Elder Abuse in Families: Exploring the potential of Routine Activities Theory

The aim of this paper is to stimulate theoretical thought about financial elder abuse within families, by exploring the potential of ‘routine activities theory’ for raising our understanding of, and response to, its occurrences. Research into financial elder abuse, defined as the illegal or improper use of a person's finances or property by another person, has tended to emphasise the abusive event and the associated risk factors. ‘Routine activities theory’, in contrast, directs attention more to developing prevention strategies that focus on everyday activities and hence seek to reduce the opportunities for illegal activity. The authors' research programme on the broad topic of money management and older people in Australia has conceptualised financial elder abuse as one possible outcome of the family management of older people's assets. This paper reports an application of routine activities theory to in-depth data of the asset-management practices and experiences of 81 family members who were assisting 86 older people. The paper concludes that the theory contributes to our understanding of how and why financial abuse occurs in families. It makes clear the distorting influence of a sense of entitlement and the preventive importance of both capable guardians, to oversee family-asset management and be alert to mismanagement, and the need for improved financial awareness, skills and probity in the community in connection with this common task of assisting older people to manage their financial assets