Australian Association of Gerontology NT Division

Conference 2012

Elder Abuse – A Cause for Action

Capacity, Incapacity and Vulnerability

Introduction

Our system of law has a deep concern with human autonomy and responsibility. An adult’s freedom of will and freedom to make decisions is recognized as a human value of the highest importance.This is tempered by a realistic acknowledgment of the many ways is which this freedom may be compromised, including physical or mental impairment or vulnerability to influence or exploitation.

There are no Northern Territory[1]laws dealing specifically with elder abuse[2] or elder financial abuse. The issue of elder financial abuse is usually approached more generally through laws about decision making capacity which focus on the reality of consent in dispositions of property and other transactions.

The term “capacity” may refer to an individual’s decision making capacity or competence, usually asking whether that capacity is impaired in some way. “Capacity” may also refer to formal capacity such as age e.g. a child cannot conduct legal proceedings (without a litigation guardian) or marry (except with permission if over 16) or make a contract (except for “necessaries”). Generally in this paper “capacity” refers to mental or sometimes physical capacity.

This paper is no more than a brief survey of the area. It is intended to give those working with older adults a sense of the legal background and some of the issues that arise.

Common law – the test of mental capacity

The mental capacity necessary at law in order to make consent real in any particular matter differs according to the nature of the transaction. The highest degree of mental capacity is required for a will and special rules apply which are touched on below. On the other hand, a lower degree of mental capacity is required to contract a valid marriage[3].

In civil law there are some special rules in particular areas but in general terms the test as expressed by the High Court is as follows:

…the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of the transaction when it is explained…

Ordinarily the nature of the transaction means in this connection the broad operation, the ‘general purport’ of the instrument; but in some cases it may mean the effect of a wider transaction which the instrument is a means of carrying out…”[4]

A further complication is that a person’s mind is not one and indivisible so far as legal capacity is concerned:

… a mind may be rendered partially unsoundby the existence of delusions or persecution mania or other aberration, and yet be capable of the management and disposition of property… [O]nly when the partial unsoundness has some governing and relevant influence on the challenged disposition [does it] result in legal incapacity with respect to that disposition[5].

Contracts for value

Contracts for value or consideration are governed by the same rulesabout capacity but, in addition, a person attempting to avoid a contract generally needs to show that the other party knew or ought to have known of the incapacity or has unconscientiously exploited that person’s vulnerability[6].

An exception to this additional requirement of knowledge occurs where there is such a serious misapprehension or incomprehension of the nature of a signed document that the “pen does not follow the mind”. This may give rise to a defence of non est factum (it is not my deed) and the contract being declared void.

Where a person contracts for “necessaries”: necessary goods or services appropriate to their position in life, that person may be held to the contract even if lacking legal capacity.

Wills and other voluntary settlements of property

The classic statement of the mental capacity necessary to make a valid will is as follows:

It is essential to the exercise of such power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made[7].

This means that the testator must be able to:

understand the effect of the disposition of his or her property,
understand the extent and character of the property dealt with,
recognize and assess the moral claims of the people who ought to be considered, and
his or her mind must be free to act in a natural, regular and ordinary manner[8].

Forms of unsound mind which do not compromise the testator's capacity in these aspects are not material. Extreme old age, senility, alcoholism or suicidedoes not necessarily indicate mental incapacity[9].

Powers of attorney

A power of attorney granted by a person incapable of understanding the nature of the acts or transactions which the particular power of attorney purports to authorise is void.

A general power of attorneyis immediately revoked by the donor’s subsequent incapacity.

However, an enduring power of attorney granted under the Powers of Attorney Actby a person who has capacity at the time of the grant but who subsequently becomes incapable is not revoked.

Vulnerability to influence or exploitation

Contracts resulting from undue influence may be rescinded. The cases fall into two categories:

where there is no special relationship between the parties and
where a special relationship exists.

The doctrine of undue influence arises when one party “occupies or assumes towards another a position naturally involving an ascendancy or influence, or a dependence or trust on his part”[10]. The questions of influence and capacity are not separate. In Johnson v Buttress[11]the party complaining of undue influence had been a long term friend of the party exercising the influence. The existence of influence was established from the illiteracy, ignorance of affairs and “strangeness” of character of the subordinate party. Once it is established that a relationship of this nature exists the fact that consideration (or value)is inadequate requires the court to examine the propriety of the transaction and it may infer the fact of undue influence from the circumstances.

The special relationships that give rise to an automatic presumption of undue influence include solicitor and client, doctor and patient, the authorities in a mental hospital and a patient, guardian and ward, parent and child and religious adviser and disciple. Husband and wife are not included.

The related and overlapping doctrine of unconscionable conduct applies when a party, by reason of some condition or circumstance, is at a special disadvantage and unfair or unconscientious advantage is taken of the opportunity thereby created[12].Age and lack of understanding of English,or even emotional infatuation[13], may be a relevant condition.Transactions may be set aside.

Consent to medicaltreatment and operations

The law recognizes a fundamental right to personal inviolability. This underscores the principles of assault, both civil and criminal, and has its source in the recognition that each person has a unique dignity.

The law will protect equally the dignity of the hale and hearty and the dignity of the weak and lame; the frail baby and of the frail aged; of the intellectually able and the intellectually disabled…

Our law admits of no discrimination against the weak and disadvantaged in their human dignity. Intellectual disability justifies no impairment of human dignity, no invasion of the right to personal integrity[14].

There are two aspects to consent to medical treatment and operations:

(a)A patient's agreement after being advised in broad terms of the nature of the procedure to be performed will negate an action for trespass or assault and battery[15].

(b)A patient is entitled to participate in informed decisionmaking about his or her medical treatment so far as he or she is able. Informed decisionmaking requires a patient's medical adviser to advise about the nature and consequences of the treatment or procedure, the risks and complications involved and the likely consequences of not undertaking the treatment or procedure. Failure to do so may give rise to an action in negligence.

In the case of an adult with a degree of mental impairment or a child[16] the answer to the question of whether that person is capable of giving consent will depend on the nature of the treatment or procedure proposed and whether he or she has sufficient understanding to understand fully what is proposed.

If an adult patient is incapable of consent to medical treatment or a procedure it is necessary to seek a guardianship order under the Adult Guardianship Act. If the proposed procedure is "a major medical procedure", including a procedure relating to contraception or the termination of pregnancy, it is, in addition, necessary to seek the consent of the Local Court to the procedure.

If a child patient is incapable of consent (age alone is not determinative) usually the consent of the child's guardian or guardians will be sufficient. If the medical procedure is one such as sterilisation the consent of the Family Court is required[17].

The Emergency Medical Operations Act allows a medical practitioner to perform an operation without consent in the case of medical emergency where the patient is incapable, by reason of his or her medical condition, of giving consent or, in the case of a child, where it is not practicable to delay the operation to obtain the consent of a parent or guardian.

The statutory framework

Adult Guardianship Act

The Adult Guardianship Act applies to an adult with an intellectual disability where the disability results from

…an illness, injury, congenital disorder or organic deterioration or of unknown origin and by reason of which the person appears to be unable to make reasonable judgements or informed decisions relevant to daily living.

The Local Court may appoint an adult guardian where the person has an intellectual disability and is in need of an adult guardian. It is the role of the Minister as Public Guardian to apply for orders. Once an application is made a Guardianship Panel is set up to advise, give reports and make recommendations to the Court in respect of the application.

The best interests of the represented person are to be promoted and the means least restrictive of the person's freedom of decision and action as is possible are to be adopted. The wishes of the represented person are, wherever possible, to be given effect.

The Court must be satisfied that the guardian will act in the best interests of the proposed represented person, is not in a position of conflict of interest and is suitable to act as the guardian.

If the Court is satisfied that the guardian is competent to manage the estate of the person who is subject to the application it may appoint the guardian to be manager of the person's estate on such terms as it thinks fit. If it is not satisfied that the adult guardian is competent to manage the estate it may order the Public Trustee or some other person to make an application under the Aged and Infirm Persons Property Act for a protection order.

The Court may make full orders, conditional orders or temporary orders. Under a full order the guardian has

…all the powers and duties which the guardian would have if he or she were a parent and the represented person his or her infant child.

A conditional order confers on the guardian one or more of the powers and duties of a guardian under a full order as the Court specifies in the order.

The power of a guardian to consent to healthcare and medical procedures is limited. A "major medical procedure" requires the consent of the Local Court. "Major medical procedure" is somewhat confusingly defined as

(a)a medical or dental procedure that does not remove an immediate threat to a person's health and which is generally accepted by the medical profession or, as the case may be, dental profession as being of a major nature; and

(b)a medical procedure relating to:

(i)contraception; or

(ii)the termination of a pregnancy.

It seems to be assumed that a major medical procedure intended to remove an immediate threat to a person's health would be one subject to the Emergency Medical Operations Actand consent would not be required.

An adult guardian pursuant to a full order or a conditional order that specifically confers power to do so may consent to medical procedures that are not “major medical procedures”. Neither an adult guardian nor the Local Court haspower to consent to a medical procedure such as sterilisation. In such a case it would be necessary to apply to the Supreme Court for its consent under the parenspatriae jurisdiction[18].

Aged and Infirm Persons Property Act

The Supreme Court may make a protection order in respect of the estate of a person if it is satisfied that the person is

… by reason of age, disease, illness or mental or physical infirmity in a position which renders it necessary in the interest of that person or the interests of those dependent upon him that his estate be protected.

In deciding whether to make a protection order the Supreme Court must take into account any report of an investigation by the relevant Minister and whether the person in respect of whose estate the application has been made is

(i)unable, wholly or partly, to manage his affairs; or

(ii)subject to or liable to be subject to undue influence in respect of his estate or the disposition thereof.

The Public Trustee or one or more other persons may be appointed to manage the estate.The manager is a trustee of the estate.

Powers of Attorney Act

A power of attorney is a signed written authority to act as another person's agent. The power may be unlimited or limited to a particular subject matter. A power of attorney may be registered with the Land Titles Office.

A power of attorney is usually considered to authorise dealings with property only. There appears to be no common law rule allowing any person to consent to medical treatment or surgery on behalf of another person as their agent[19]. Some jurisdictions, but not the Northern Territory, have dealt with this through legislation.

A general power of attorney is revoked by

(a)the death of the donor or doneeof the power;

(b)the legal incapacity of the donor or donee of the of the power at any time after the execution of the instrument;

(c)the retirement of the donee of the power;

(d)the donor or donee of the power becoming bankrupt etc.;

(e)the revocation of the power by the donor.

An enduring power of attorney is created by signing the form of acceptance of enduring power of attorney under the Powers of Attorney Act. The important difference between a general power of attorney and an enduring power of attorney is that an enduring power of attorney is not revoked by the legal incapacity of the donor after the execution of the instrument.

The Supreme Court may revoke an enduring power of attorney or appoint a substitute donee, including the Public Trustee. Subject to an exception that need not be dealt with here, the making of a protection order under the Aged and Infirm Persons Property Act revokes both a general and enduring power of attorney to the extent that it authorises the donee to deal with property which is subject to the protection order.

The appointment of a guardian under the Adult Guardianship Act does not revoke an enduring power of attorney[20].

Enduring powers of attorney are widely given, particularly by frail or elderly people to members of their family. There is, in reality, little supervision of the exercise of a general or enduring power of attorney and there is a danger that the power may be abused. The theoretical authority of the Supreme Court to supervise is rarely invoked.

Emergency Medical Operations Actand Mental Health Act

The Emergency Medical Operations Act allows the performance of a surgical operation without consent in an emergency where the patient is, in the opinion of the medical practitioner performing the operation and at least one other medical practitioner, in danger of dying or suffering serious permanent disability unless the surgical operation is performed.

In the case of an adult otherwise able to give consent, the medical practitioner is not entitled to perform the operation unless (1) the patient is, by reason of the medical condition, incapable of giving consent and (2) the medical practitioner is of the opinion that it is not practicable to delay the performance of the operation until the consent of the patient or of his next of kin can be sought.

In the case of a child/infant the medical practitioner is not entitled to perform the operation unless (1) the medical practitioner is of the opinion that it is not practicable to delay the performance of the operation until the consent of a de facto partner or parent or guardian of the infant can be sought or (2) the de facto partner or parent or guardian of the infant fails to give consent.

In the case of an adult who is incapable in law of giving consent to the operation the medical practitioner is not entitled to perform the operation unless the medical practitioner is of the opinion that it is not practicable to delay the performance of the operation until the consent of the person having authority in law to consent can be sought.

The Mental Health and Related Services Actrequires that voluntary patients give informed consent to treatment or that a guardian appointed under the Adult Guardianship Actgive consent. If a psychiatrist is unable to determine whether a voluntary patient has capacity the Mental Health Review Tribunal will determine the person’s capacity. Pending the Tribunal’s decision treatment may be given to prevent serious harm to the person or someone else, to prevent further physical or mental deterioration of the person or to relieve acute symptomatology.

In the case of involuntary patients treatment under the Act must not be administered unless authorised by the Tribunal. Treatment not authorised by theTribunal must not be administered unless necessary to prevent serious harm to the person or someone else, to prevent further physical or mental deterioration of the person or to relieve acute symptomatology.

Domestic and Family Violence Act and the Aged Care Act (Cwth)

Mention should be made of the mandatory reporting requirements of the Domestic and Family Violence Act. The Act has a wide coverage. It defines "domestic relationship" to mean a family relationship, custody or guardianship or a right of access, living with another person, an intimate personal relationship or a carer's relationship. A "carers relationship" exists between two persons if one of them is dependent on the ongoing paid or unpaid care of the other.

"Domestic violence" means, in a domestic relationship, causing harm, damaging property, intimidation, stalking and economic abuse or threatening any of these. "Economic abuse" means coercing a person to relinquish control over assets or income, unreasonably disposing of property (whether owned by the person or jointly with someone else) without consent, unreasonably preventing a person from taking part in decisions over household expenditure or the disposition of joint property and withholding money reasonably necessary for the maintenance of the person or a child of the person.

The mandatory reporting requirements are set out in section 124A. An adult commits an offence if he or she believes on reasonable grounds that either or both of the following circumstances exist:

(i)another person has caused, or is likely to cause, serious physical harm to another person in a domestic relationship;