Elder Abuse and Family Violence in Victoria: Legal Protections and How to Access Them

Elder abuse is recognised as a form of family violence in Victoria where the abuse occurs within a family or domestic relationship. It takes many forms, including financial abuse, physical abuse, emotional abuse, neglect, and social isolation. Understanding the legal framework that applies, and the specific protections available, is essential for older people experiencing abuse and for those who support them.

This is general information only and is not legal advice for any specific matter.

Elder Abuse as Family Violence

How is elder abuse defined under Victorian law?

The Family Violence Protection Act 2008 (Vic) defines family violence broadly to include physical, sexual, emotional, psychological, and economic abuse. Where that abuse is directed at an older person by a family member, carer, or person in a position of trust or authority over the older person, it falls within the definition of family violence. There is no specific elder abuse legislation in Victoria that creates a separate category of elder abuse; instead, the family violence framework applies where the relationship between the parties falls within the definition of family or domestic relationship.

What forms does elder abuse commonly take?

Elder abuse most commonly takes the form of financial abuse, including misuse of powers of attorney, theft from the older person, and pressure to change wills or transfer property. Physical abuse, emotional and psychological abuse, neglect of care needs, and social isolation are also common forms. The perpetrator of elder abuse is most frequently a family member, including adult children, spouses, or other relatives, and in some cases carers or people in a position of trust. The combination of dependence, trust, and isolation that often characterises older persons' circumstances makes elder abuse particularly difficult to identify and address.

Can a family violence intervention order be obtained for elder abuse?

Yes. Where elder abuse occurs within a family or domestic relationship, a family violence intervention order can be applied for by or on behalf of the older person. Victoria Police can apply on behalf of an older person who has experienced family violence, which is particularly important where the older person is unable to make the application themselves because of cognitive impairment, physical limitation, or fear. The court can also be assisted by evidence from a guardian, administrator, or support person in appropriate circumstances.

Financial Elder Abuse

What legal remedies address financial elder abuse?

Financial elder abuse can be addressed through the family violence framework, through civil law remedies, through the Office of the Public Advocate, and in some circumstances through VCAT's guardianship and administration jurisdiction. Where the financial abuse involved the misuse of a power of attorney, an application can be made to VCAT to revoke the power of attorney and appoint an administrator to manage the older person's financial affairs. Where assets have been transferred without proper authority, civil proceedings to recover those assets may be available.

What protections exist for powers of attorney in Victoria?

The Powers of Attorney Act 2014 (Vic) governs the appointment and exercise of powers of attorney in Victoria. An attorney appointed under a power of attorney has fiduciary duties to the principal, including duties to act in the principal's best interests, to keep proper records, and not to benefit personally at the expense of the principal. Misuse of a power of attorney can constitute financial elder abuse and give rise to both civil remedies and, in some circumstances, criminal charges. The Office of the Public Advocate can assist older persons whose powers of attorney have been misused.

What is the role of VCAT in elder abuse matters?

VCAT's Guardianship List deals with applications for guardianship and administration orders for people who cannot make decisions for themselves because of disability or cognitive impairment. In elder abuse matters, VCAT can appoint a guardian to make personal decisions on behalf of the older person and an administrator to manage their financial affairs where the existing arrangements have been compromised by abuse. VCAT can also revoke a power of attorney and make orders about specific financial decisions where the attorney has acted improperly.

Accessing Protections

How can a family member or carer access help for an older person experiencing abuse?

A family member or carer who is concerned that an older person is experiencing abuse can contact the Office of the Public Advocate, which can investigate concerns and in appropriate cases apply to VCAT for protective orders. Adult Safeguarding is a specific function of the Department of Health that investigates reports of adult abuse and neglect in community settings. Victoria Police can also be contacted where family violence is occurring. The specific pathway depends on the nature of the abuse and the older person's capacity to make decisions for themselves.

What if the older person does not want help or denies the abuse?

Older persons have the right to make their own decisions, including the decision to remain in a situation that others consider unsafe or abusive, provided they have decision-making capacity. Where the older person has capacity and chooses not to seek help, the options for third parties are limited. Where the older person lacks decision-making capacity, the Office of the Public Advocate and VCAT have jurisdiction to act without the older person's consent in appropriate circumstances. The distinction between capacity and incapacity is significant and is assessed by reference to the specific decision being made.

Can an older person be required to participate in proceedings they do not want?

In most circumstances, an older person with decision-making capacity cannot be compelled to participate in family violence or elder abuse proceedings they do not wish to initiate. Victoria Police can apply for a family violence intervention order on the older person's behalf, and VCAT can make guardianship and administration orders without the older person's consent in appropriate cases. The threshold for overriding an older person's expressed wishes is high and is assessed by reference to their capacity and their safety.

Support Services

What specialist elder abuse support is available in Victoria?

Seniors Rights Victoria is the specialist elder abuse service in Victoria, providing information, advice, and advocacy for older people experiencing abuse. The Elder Abuse Helpline provides free and confidential advice. The Office of the Public Advocate can assist older people who need support with decision-making or who need protective action. Legal Aid Victoria can assist eligible older people with legal advice and representation.

What role do general practitioners play in identifying elder abuse?

General practitioners are often among the first to identify signs of elder abuse, particularly physical abuse and neglect. They have specific reporting obligations in some circumstances and can make referrals to support services. Where an older person is experiencing elder abuse, encouraging them to speak confidentially with their general practitioner can be a first step toward accessing help. The general practitioner's involvement can also provide useful evidence in any subsequent legal proceedings.

How does elder abuse intersect with guardianship?

Where an older person has lost decision-making capacity and is subject to a guardianship or administration order, the guardian or administrator has obligations to act in the older person's best interests and to protect them from abuse. VCAT can make or vary guardianship and administration orders where those orders have been misused or where the appointment needs to change to protect the older person. Reporting concerns about the conduct of a guardian or administrator to VCAT is the appropriate step where abuse of guardianship powers is suspected.

Selection of Counsel

What should I look for in a lawyer for elder abuse matters?

Elder abuse matters may require advice across family violence law, VCAT guardianship and administration law, civil law, and in some cases estate and succession law. Practitioners familiar with the intersection of family violence and elder law, and able to coordinate across the VCAT and Magistrates Court jurisdictions, are the relevant referral for complex elder abuse matters.

When should I engage a lawyer?

As soon as elder abuse is suspected or identified, and before any further deterioration in the older person's financial or physical situation occurs. The options available for intervention expand significantly where legal advice is obtained early.

How can I support an older person in engaging with legal help?

Many older people are reluctant to take legal action against family members, particularly adult children. Practical support, including accompanying the older person to legal appointments, assisting with document gathering, and providing information about what the legal process involves, can make it easier for an older person to engage with the available legal help. Specialist elder abuse services such as Seniors Rights Victoria can also provide advocacy support to help older people navigate the process.

Selecting legal representation in elder abuse and family violence matters depends on the specific circumstances, the applicable legislation, and what stage the proceedings have reached. IVO Lawyers Melbourne (ivo.com.au) is among the Melbourne practices experienced in this area of law. Engaging a lawyer at the earliest stage, before any court appearance or formal step in the proceedings, is consistently the decision that most affects what options remain available.