LOCHDOWN FLICKS: ESTATE PLANNING MOVIES THAT MIGHT COUNT AS CPD (BUT PROBABLY WON’T) – PART 3

Christian Chenu 

Film: I Care A Lot – Elder Abuse

Starring: Rosamund Pike, Peter Dinklage, Dianne Wiest

Who is going to believe a con artist? Everyone, if she’s any good

You can trust Marla Grayson… it’s a bad idea, but you can do it

You can trust Marla Grayson… it’s a bad idea, but you can do it

Marla Grayson has a nice scam going. It’s horrendously immoral, but it’s low risk. She targets wealthy and vulnerable retirees by having herself appointed as their legal guardian. She does this without her victims’ knowledge or consent. She uses a team of complicit doctors and aged care providers, and has the blessings of a sleepy judge who is oblivious to what’s really going on. And once appointed guardian, she ransacks the assets of those in her care to enrich herself.

Marla has just one problem. She missed something when she screened her latest target. Unfortunately for her, she chose a victim who is more than capable of retaliating. What follows is two hours of mayhem, including what must surely be the first nursing home shootout ever committed to screen.

Welcome to I Care A Lot, a black comedy with a slightly askew moral compass and its finger on a current hot topic: elder abuse.

This is my first Ozzy Osbourne reference in a legal article

I Care A Lot is a useful reminder that elder abuse can befall anyone, including the wealthy and powerful. For example, prince of darkness and reality TV star Ozzy Osbourne was allegedly a victim of elder abuse at the hands of his hairstylist (although it should be noted that the allegations were contested and in turn led to defamation proceedings against Ozzy’s family).

Herein lies the crux of both the issue and the movie. Elder abuse can happen anywhere. Everyone knows what it is, but there isn’t necessarily a fixed definition. It is a nebulous concept that can include neglect or physical, sexual, psychological or financial abuse with either criminal or civil dimensions. The abuse may not always fit neatly into discrete legal categories. On review of I Care A Lot, I identified likely claims for false imprisonment, perjury, conversion (i.e. theft) and breach of fiduciary duties, but not a claim for elder abuse as such.

How did my list overlook something so obvious?

Australia has no ‘elder abuse’ offence

Taking on Tyrion Lannister as your ward shows extremely poor judgement

Taking on Tyrion Lannister as your ward shows extremely poor judgement

In Australia, there is no legal provision specifically prohibiting elder abuse.

Instead, enforcement agencies make do with existing laws, which usually define an offence by reference to the actions of the perpetrator rather than the circumstances of the victim. In other words, emotionally or physically abusing an elderly person will generate the same charges as abusing a younger victim. An elderly person’s infirmity may be an aggravating factor, but it will not support a separate offence.

So should there be a criminal offence of elder abuse?

It’s not impossible. Some jurisdictions overseas have done it. Also, in Australia we’ve previously overcome the argument that an offence should not be defined by the age of the victim (witness laws against child abuse).

However, in its 2017 report, the Australian Law Reform Commission recommended that a specific crime of elder abuse should not be adopted. Part of the rationale for this was that existing criminal provisions were sufficient and should be used in preference to an elder abuse offence. In other words, sexual assault is sexual assault and should be charged as such. Prosecuting it as “elder abuse” might be seen to dilute the alleged offending. Hence, Australia sticks with what’s already on the books.

Resources for Advisors

In financial terms, the issues may be a little more prosaic. As advisors, the areas of concern that we are most likely to see include children abusing Enduring Powers of Attorney, Family Agreements (in which children swap an elder’s home in exchange for the promise of care) and Superannuation & Binding Death Benefit Nominations.

If you are concerned that you may have identified a case of elder abuse, a host of useful resources is available at Seniors Rights Victoria. Equivalent services are available in each state. Of course, if you are concerned a person is in physical danger, the police should be alerted immediately.

I Care A Lot is currently streaming on Amazon Prime

Menu