In our experience, the mitigation of abusive conduct needs us, as a community, to move from passive Coping to active Caring at an earlier stage of the ageing of a person than is usually the case.
It is not the role of the law to prevent abusive or coercive conduct. The law can provide remedies or redress when this conduct occurs. The search for mitigation, whilst involving the law, must look elsewhere for additional support.
Case study: a son locked down overseas
We were called recently by a son who was locked down overseas. His mother who was divorced and lived alone was admitted to hospital. He was seeking guidance on how to act as his mother’s attorney and guardian because he perceived his mother was making poor decisions.
It emerged that the mother, whilst having medical and mental health issues, was still a competent decision maker as far as the hospital doctors were concerned. The role of the son was sidelined by the independent decision making ability of the mother.
The lack of ability to advocate their own best interest is in our experience, a common contributing factor that helps abusive conduct emerge.
Fully informed consent
A pivotal point is whether a person can give fully informed consent for a given cause or concern. This means that they must have all the functions of an active decision maker. This requires an appreciation of the behaviour of competent decision makers.
Decision making ability is not diagnosis bound. A recent NIHMS article provided authority for the proposition that dementia is precedented by a cognitive decline of up to 1-2 decades.
The point we wish to advocate is that:
1. The law in and of itself cannot prevent abusive or coercive conduct.
2. Any “fix” has to start with community education and improving the social compact of Australia with regards to these issues.
3. The Voluntary Assisted Dying laws in Australia bring into focus the need to both support and safeguard the will and preference of a person. We are moving steadily into a rights based decision making society. The idea of best interests duty is becoming in many fields, anachronistic.
4. Multi disciplinary fields of professional practice have great potential outside medicine to marshal resources to help clients deal with a broad range of decision making professionals.
5. Functional specialisation in professional and commercial service providers reduces the decision making support available to citizens and their supporters. Capacity building for complex decision making within families is needed as an improvement to our social compact. The multi disciplinary approach of the Society of Trust and Estate Practitioners gives a model that is eminently adaptable to meet this community need.
Just having a national register of Power of Attorney does not prevent elder abuse, it only helps banks validate the currency of an attorney’s authority.
Helping our clients, their supporters and family row in the same boat
Our professional practice objectives of helping our clients, their supporters and family row in the same boat still remains in my view the best starting point for early intervention mitigating the emergence of abusive conduct.
The motivator of abuse is often estrangement between the person under care, their supporters and family. Rectifying this deterioration in relationships when possible, provides the best measure of support we can see for stopping abusive conduct before it starts.
The law is needed to deal with the consequences of failure in these strategies and must not be seen as a complete solution in and of itself.
Multi disciplinary professional practice outside the health and medical fields has much to contribute to the mitigation of abusive and coercive conduct in the community.
Please contact us if you have questions about the decision making capacity of a loved one.