Banks at the Forefront: A Legal Framework for the Identification and Reporting of Elder Financial Abuse

Abstract

Elder abuse is a growing and serious issue in Australian communities, particularly with the rise of the ageing population. Elder abuse of any kind has extensive consequences for the elderly, their families and the wider community. In the past few decades, and particularly in the last five years, policymakers have progressively developed policy instruments and strategies to generally protect the elderly population. However, it was not until the late 1980s, when Australia seriously started considering the issue of older people being victims of crime, abuse and exploitation. This dissertation argues that Australian banks and financial institutions have an obvious, yet underutilised, role in the early identification of elder financial abuse. As such, the current bank reporting framework for elder financial abuse is voluntary and imposes limited obligations for banks to respond to financial abuse. The frontline role of bank tellers or staff cannot be underestimated in detecting unusual or suspicious transactions indicating potential elder financial abuse. And yet, it is fair to say that despite their unique position, banks have been and continue to be reluctant to intervene in cases of suspected elder financial abuse because of concerns regarding inter alia privacy obligations, legal liability, and the absence of a consistent reporting framework. In suggesting that banks adopt a proactive response to financial abuse, this dissertation examines the current bank reporting frameworks for elder financial abuse and underscores need to implement a mandatory reporting framework in Australia. It then considers how the issue of elder financial abuse is addressed internationally in the United States and Canada, by examining various frameworks already in place in relation to the training, and reporting obligations on banks. Lastly, in order to propose an effective mandatory reporting framework as a response to elder financial abuse, this thesis argues that a balance must be achieved and maintained between autonomy and rights of elderly people and the need to protect vulnerable elderly Australians from financial exploitation.