The law in NSW is evolving this year to improve a person’s autonomy to defend their decision-making rights.

As a cognitive responsive law firm, Autonomy First Lawyers is at the forefront of responding to these changes, consistently looking for ways to support our client’s decision-making as they age.

When people age, their ability to defend what is in their best interests can decline. The NSW Government has established a new definition of domestic abuse from February 2024 and is set to make coercive control a criminal offence from July 2024.

For more information please see https://dcj.nsw.gov.au/children-and-families/family-domestic-and-sexual-violence/police–legal-help-and-the-law/criminalising-coercive-control-in-nsw.html

Domestic violence is prevalent and can occur in intimate and family relationships at any age. The damage that can occur in such scenarios include (as described in the attached fact sheet):

  1. Deliberately harming a person’s mental health or emotional wellbeing e.g., constantly insulting and criticising someone.
  2. Shaming, humiliating or belittling someone e.g., sharing private information about them or making jokes that harm their self-esteem and dignity.
  3. Using violence to hurt, control or intimidate someone e.g., physically hurting a person in any way, throwing or breaking things, or driving recklessly to make someone feel unsafe.
  4. Making threats e.g., threatening to withdraw visa sponsorship, or threatening to take a child out of the country.
  5. Isolating someone from their friends, family and community e.g., taking away their phone so they can’t contact family and friends.
  6. Limiting someone’s freedom and independence or controlling their day-to-day choices e.g., making rules about what they can wear or preventing the person from leaving the house or going out alone.
  7. Controlling or limiting someone’s access to money or their ability to make money e.g., not allowing them to work outside the home to earn money.

These are especially important indicators of matters of concern where a person is of declining decision-making ability. The actions of carers, supporters and personal representatives may (even when well-intentioned) infringe on the rights of the ageing person.

These indicators affect the roles of Attorneys and Guardians who particularly have a high duty of care to the person for whom they are responsible.

These domestic abuse indicators need also to be contrasted to the indicators of Elder Abuse recognised by the Law Society of NSW, that include:

  • A client’s attorney is acting beyond their authority, particularly where it does not benefit the client;
  • A client is transferring property for little or no consideration (including by way of a gift);
  • A client is due to receive a large sum of money and wishes to have it paid to another person, such as a relative;
  • A relative or friend insists on being present at appointments with you, especially where the client might need an interpreter;
  • Although the client has assets, their expenses are not being paid, or they report losing money/valuables or being charged for services/overcharged in circumstances where this would be unexpected, such as a relative shopping on behalf of a client;
  • A client presents with bruises, or displays fear or anxiety;
  • A vulnerable client suddenly changes to a new solicitor;
  • A client asks you to be their attorney or guardian because they do not trust anyone else;
  • The matter involves financial transactions that cannot be readily explained; or
  • The client is experiencing social isolation and dependence, usually dependence upon an adult child.

Our normal practice is to try to open up a conversation between a person, their personal representative and supporters about the expectations of the person of their representatives about the representatives’ job to be done.

We can use document frameworks such as Memorandum of Wishes and Estate Administration plans to document the expectations of the conduct of personal representatives.

We remain in the hands of our clients to tell us the importance of these issues to themselves and their family. Situations where a person shares their values about their expectation of care normally results in close supportive conduct between a person, their representatives, supporters and carers.

Without these conversations, when Attorneys or Guardians ask us what the client would have wanted, we have to reply that we are sorry but we don’t know. We ask if this was discussed when you agreed to your appointment, and in most cases the answer is ‘no’.

The Vulnerable Decision Maker Guide Sheet available on the Downloads Page of our website is a resource that can be used to start conversations about these concerns.

We are seeing a rise in the frequency of such issues in our work.

We ask clients to tell us if there are factors that concern them.

The best results always occur when a person under care is able to be their own advocate for what is in their best interest. Our role then is to support the decision making of our clients.