What can we do when financial abuse happens?
The best approach is to prevent FEA from happening, because by the time it is recognised irreplaceable assets may have been lost. But once it is detected, what action can be taken and by whom? Should FEA be considered a social service or a criminal justice problem?
As with child abuse, there are mixed views on whether or not mandatory reporting of elder abuse would improve the outcomes for victims. Mandatory systems may produce better information on the incidence of abuse and better case management. They could help to raise public awareness of the problem. However, there is little evidence that mandatory reporting is more effective than voluntary systems and it denies the right of older people to make their own decisions.
Role of Banks
People working in the banking industry are often the first to suspect or detect FEA. But this puts staff in a difficult position. They are often reluctant to become involved in family financial disputes. Banks are reluctant to report suspicious transactions for fear of violating obligations of privacy. Should mandatory reporting over-ride privacy requirements in banking or similar contexts and should there be some protections for those who report abuse?
The response of the banking industry to FEA is highly variable at present and it is criticised for applying too much or too little regulation. But there a range of actions which can be taken, some preventive and some remedial. Perhaps bank staff could be trained to recognise the signs of abuse and the common profiles of a vulnerable customers and/or potential abusers. The banks could then set up protocols to deal with suspected abuse.
Specialised Elder Abuse and Neglect Services
Free telephone helplines can be useful in community education, answering general questions and providing people with self-help information. They can also offer referral, advocacy and support and legal services. In New Zealand the 0800 Family Violence information line “provides self-help information and connects people to services where appropriate” , working with all forms of family violence.
New Zealand services
Elder Abuse and Neglect Prevention (EANP) Services in New Zealand raise awareness in their communities and provide education for those who work with older people. They investigate and assess referrals about suspected abuse and co-ordinate multi-disciplinary services according to the needs of people (and their families where appropriate). The Ministry of Social Development administers service contracts for EANP services. The main provider is Age Concern, but there are also ethnic-specific services.
Legal and quasi-legal measures
Using the criminal justice system
Older people, in New Zealand and overseas, tend not to use the criminal justice system in cases of elder abuse and neglect. They may fear the consequences of conviction for a family member. Their health may make it hard for them to participate in court proceedings. There have been convictions for FEA, mainly related to theft – cases of carers stealing from clients, neighbours befriending older people and then stealing from them, even theft by children and grandchildren.
Although criminalisation may lead to better reporting and punishment of FEA, there are arguments against it. Legal action is costly and the problem may be more deep-seated than legal remedies can address. There is a “grey area” where what is occurring may be improper rather than illegal; where the act or omission may not be deliberately abusive or malicious; or where the question of consent is unclear.
Use of civil law and civil court proceedings
Another legal option is to take a civil case in court, or, for amounts less than $20,000, the Disputes Tribunal. Civil proceedings are for disputes between individuals which do not involve criminal action. But the cost of filing a claim (over $1,000), of securing legal representation, and the time and stress involved with court action may pose huge barriers for older victims.
Alternative dispute resolution
Alternative dispute resolution includes mediation, arbitration and negotiation. The purpose is to achieve a voluntary agreement (avoiding the need to go to court), or an agreement which can then be formalised by a court.
Restorative justice is a voluntary process for resolving crime that focuses on redressing the harm done to victims, while holding offenders to account. It does this primarily through a conference between the victim and the offender. Both the victim and offender must agree to participate, and the offender must admit responsibility for the crime before the restorative justice process can commence. A report on the conference agreement is provided to the victim, offender and the Judge. Restorative justice processes are being used in appropriate elder abuse cases in Ontario, Canada, with some indications of success.
We need better means of dealing with financial elder abuse
It seems that the number of older people experiencing or vulnerable to FEA is increasing, and not because of population ageing. Opportunities for FEA are growing as greater numbers of older people are surviving to late old age, when they may have physical and cognitive disabilities. The economic pressures on families and the demands of paid work are growing, contributing to the allure of assets in the hands of older relatives. These pressures also make family caring more stressful, especially for the so-called ‘sandwich’ generation. At the same time, it is also quite clear that FEA has very serious impacts on the lives of many older people.