Where’s the proof? Families punished with unsubstantiated abuse allegations

This article is part 12 in a series. For the full series, go here.

Note: some readers may find aspects of this article distressing.

Alan* has been accused of neglecting his elderly mother Betty*, acting aggressively towards her, and taking her money for his personal use. Despite living independently with her son for years, Betty was told she was too ill and frail to continue doing so.

The allegations were made by social workers and hospital staff to a state tribunal after Alan took Betty to hospital for a minor infection earlier this year. As a result, Betty has been placed under a guardianship order and a state representative decided to place her in an aged care facility against her wishes. 

The problem? Tribunals are not bound by the same rules of evidence as courts. Families can dispute and test the evidence, but only if they’re a party to the proceedings — and only if they’re made aware of the allegations before the hearing. 

The first time Alan found out about the allegations of neglect, financial abuse and aggression was during the tribunal hearing. He tried to lodge two appeals, gathering evidence — including bank statements and testimonials from neighbours and family friends — to dispute the allegations and attest to Betty’s independence, but they were denied. His request for a copy of the tribunal audio recording was also denied.

“It would have been nice if they told me about these allegations beforehand so I could have a response prepared,” he said. “I’ve been caring for my mother for three years and paying for everything and her pension is in a bank account untouched.” 

Public guardians — who oversee a person’s care and living situation — and public trustees — who manage a person’s finances — are put in place when a tribunal decides a person no longer has the mental capacity to decide for themselves. They are powerful, with trustees managing almost $15 billion in client assets across Australia.

Due to very strict gag laws, Crikey can’t reveal the identity of the family or the state they live in. Reporting on those under guardianship orders is exceptionally difficult. Families and those under guardianship orders have to apply to the tribunal for permission to publicly name themselves.

A different picture 

Alan moved in with Betty three years ago. She had several carers who would help her at home with food provided by Meals on Wheels, but Alan — Berry’s youngest — decided he would move in to help. He had previously cared for his father, who was separated from Betty.

Betty liked spending her days pottering around the house, devouring long novels alongside her “gentle giant” dog, and went on weekly outings with a seniors’ group. She had previously worked as a social worker and briefly spoke to Crikey to confirm she wanted to go home and wanted her story told.

Alan says she’s always been a slim woman. When he took her to the hospital earlier this year after she stopped eating, she was diagnosed as underweight with a bladder infection, which can cause delirium and dementia.

On the day of her first tribunal hearing, Alan says Betty was disoriented and appeared to be under the influence of sedatives and Betty’s other son questioned whether her physical illnesses made her less capable of putting her case clearly. A limited guardianship order was placed, before being updated to a more restrictive guardianship order in a separate hearing.

“There’s just this voice at the other end of the call saying our decisions will be finalised, without ever meeting mum,” Alan said.

Betty was classified as being mentally incapacitated and being too high of a fall-risk to return home. A public guardian was appointed to oversee where Betty lived, and the state public trustee was appointed to manage her finances. Betty was moved from hospital to respite care, to a residential aged care facility. The public trustee is attempting to sell her home to cover the cost of the aged care facility. 

“Why is she being detained — is having dementia a crime?” Alan said.

As Crikey’s previous investigation uncovered, there are concerns guardianship orders are being used to “fast-track” the elderly into Commonwealth-funded aged care, which reduces state hospital costs.

Betty’s sons say they were taken by surprise by the orders, which were supported by professionals who had first met her only during the peak of her illness. The family’s advocate was not permitted to speak in the tribunal hearing.

“They tried to show a different picture of [Betty] being incapacitated and frail,” Alan said. “By placing her in the aged care home, they’ve made that a reality.” 

He says her weight was used as evidence of poor care against him, but she’s lost even more weight since entering the aged care facility.

A close family friend who works in health administration, who has known the family for more than 20 years and visits regularly, tells Crikey she was astounded at Betty’s treatment by the state: “She’s lost between five and 10 kilos since she’s been taken out of home.

“Alan would bend over backwards for his mother and it’s heartbreaking to visit her in the aged care home. We’ll bring biscuits and have tea but it’s like leaving a child and we’re quite upset when we leave. It’s cruel how much power the state seems to have.”

Limited evidence 

Maree Buckwalter has more than two decades’ experience as a mental health advocate in New South Wales assisting people in tribunals. She has a 35-year-old son with an intellectual disability and started a political party called Carers Alliance to fight for people with disabilities. 

Buckwalter tells Crikey she is particularly concerned about guardianship tribunal hearing procedures. 

“The biggest concern is you can walk into a room and you don’t know what’s going to hit you,” she said. “There are no rules of evidence and when you complain, they say it’s an informal proceeding, but there’s nothing informal about the outcome.”

Parties have to apply to the tribunal to be granted legal representation. Buckwalter says that like Alan’s advocate, she had been told by tribunal member she wasn’t allowed to speak for her client, despite being their delegated advocate, representing people who have difficulty speaking. 

“There have been other cases where you sit there the whole time and hear these lies being said about the client, and there’s nothing you can do about it,” she said. 

She’s been less active in the space since the National Disability Insurance Scheme was implemented six years ago: “It was too hard emotionally to keep going because every time you see something happen you wonder if it could happen to your child.”

Allegations go both ways

Allegations of abuse made in tribunals go both ways: elder abuse, as the Royal Commission into Aged Care Quality and Safety found, is rife in Australia, with elderly people frequently mistreated by their families, carers and providers. 

But not all allegations are true. Studies conducted by Sydney University economics and law scholar Ben Chen found that false claims of elder abuse against family members and enduring attorneys are rife as people fight inheritance claims. 

“I found that in Australia and the US, there are frequent cases in the Supreme Court alleging misconduct pertain to someone who has already passed away,” he said.  

“These cases are really about inheritance, which the medical and social model of abuse intervention and prevention tends to ignore.”

Elder abuse is most likely to be committed by a spouse or their children. But if the public guardian or public trustee was involved in a court case, the person under guardianship order was usually still alive, giving validity to the complaints. 

The Australian Guardianship and Administration Council tells Crikey tribunals were designed to provide a free and accessible forum for the hearing of applications for guardianship and financial management orders.

“[These hearings] determine a person’s decision-making ability and to decide whether they need a guardian or manager appointed … and their role is to make decisions that are in the best interests of the person they represent.”

*Names changed for privacy.  

For legal reasons, please don’t identify yourself or others under guardianship or financial administration in the comments.

To read more pieces in this series, go here.