The Australian Law Reform Commission (ALRC) has released its report Elder Abuse —A National Legal Response (ALRC Report 131).
The ALRC was asked to consider Commonwealth laws and legal frameworks and how they might better protect older persons from misuse or abuse, and safeguard their autonomy.
The Report includes recommendations for law reform to safeguard older people from abuse and support their choices and wishes through banks and financial institutions protecting vulnerable customers from abuse.
The role of financial institutions
The ALRC proposes that banks be required to take ‘reasonable steps’ to identify and prevent the financial abuse of vulnerable customers and that this standard be prescribed in the Code of Banking Practice (the Code) so that the standard is contractually binding.
The ALRC said the steps that banks should take include:
• staff should be trained to identify potential financial abuse as part of their fraud prevention programs;
• where abuse is suspected, staff should consider talking to the customer—and ask clear, factual, and non-threatening questions;
• staff should check third party authorisations and documentation—If a third party presents a withdrawal form or instructions, bank staff should verify the third party’s authority by directly contacting the customer or checking associated documentation (ie power of attorney document);
• staff might seek advice from others in the bank—eg, managers, internal lawyers, fraud, security—and delay transactions until further investigation work is done; and
• staff might also seek advice from the Public Advocate or other relevant agency, but without identifying the customer.
Before reporting abuse to the police or other authority, banks should consider discussing the suspected abuse with the customer who may be being abused. Where the older person has a guardian, attorney, or other substitute decision-maker for financial matters, the bank might also, or instead, contact that person (assuming it is not that person who is suspected of the abuse).
The ALRC also recommends that people who report suspected abuse to adult safeguarding agencies be given immunity from certain legal obligations that might otherwise prevent them from reporting abuse. This should remove an impediment to reporting abuse that banks have identified.
The ALRC does not recommend that banks be required to report all instances of suspected abuse to authorities, but rather that reporting abuse will sometimes be the appropriate step to take.
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Author: David Jacobson
Principal, Bright Corporate Law
About David Jacobson
The information contained in this article is not legal advice. It is not to be relied upon as a full statement of the law. You should seek professional advice for your specific needs and circumstances before acting or relying on any of the content.