The Power of Privacy (in the wrong hands)

The Power of Privacy (in the wrong hands)

I am the first to defend our right to privacy. It’s one of the reasons I have never considered politics as a career.

It is a right, and a legislated one at that, meant to protect us from unnecessary intrusion, allowing many of us to live in blissful anonymity. It is a shield against those forces that would attempt to unveil and invade our personal lives.

In the wrong hands, however, it can be used as a weapon – How you may well ask?

One of the insidious tools of trade of the parent abuser is the isolation of that parent. Often, they are empowered by being anointed as the parent’s Enduring Power of Attorney and reside with the parent. They are usually a member of the family who seek to turn the home into a veritable castle surrounded on all sides by a fathomless moat unassailable by outside interests such as the other members of the family.

Their conniving ways know no bounds, the seed for which is the desire to control. It all happens in little and cumulative ways:

  • cutting off the landline so the only way to communicate is the mobile phone held by the isolater
  • changing the locks so you just can’t call in unexpectedly
  • telling you that mum or dad doesn’t want to see you or the grandkids
  • frustrating attempts to see mum or dad
  • converting mum or dad’s accounts to online ones which only the isolater can access
  • not giving basic information when you ask for it

Needless to say, such devices do nothing but exacerbate suspicions and concerns about what’s really going on.

You then try to do some investigations by contacting other interested parties such as their doctor, the bank, Centrelink and home care organisations. Their response? – “Sorry we can’t help you. I’m sure you will understand we need to protect and respect the privacy of your mum or dad.” That is a lawful and appropriate response but it doesn’t help your legitimate concerns.

What to do?

Fear not – there is a knight in shining armour who can breach the barricades and moat – The Public Guardian. It is a statutory authority established to protect the interests of the vulnerable, and in particular to protect an adult from exploitation, neglect or abuse. I call them the incapacity policemen. Isolation is a form of abuse.

Amongst other things, they have the power to:

  • Require anyone to give information or documents about an adult
  • Suspend an enduring power of attorney

As you will be frustrated by the constant assertion of privacy, the Public Guardian is not. As such, they are the perfect vehicle for you to express your concerns and hopefully to initiate an investigation. Be aware however, that they can only investigate a complaint if it is about an adult who has lost their capacity. You will not normally be able to provide evidence of that (because of the isolation) but be assured – the Public Guardian can require people, such as doctors, to give information about a patient’s capacity.

In the end, we are all naturally concerned about what happens to our mum and dad in later life when they enter that age of frailty and dependency. When your concerns are met by a wall of isolation, dismissiveness and censorship, you now know what you can do – you can fight the forces of privacy.

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Authored by: Brian Herd

Brian is a partner in the firm and has been a lawyer since 1983. He is recognised as one of Australia’s leading experts in the areas of elder law, retirement, disability and aged care. Brian has extensive experience in life planning for older people and the legal issues impacting on them including making Wills, administering estates, disputes over Wills, superannuation, social security, retirement villages and aged care, incapacity, the Guardianship Regime, the loss of a spouse or the ‘suddenly single syndrome’, planning for disabled children, elder abuse, enduring powers of attorney, advance health directives, family agreements and disputes and mediation. His expertise also extends to the structuring of business affairs and advising on the impact of the transfer of interests in family businesses including trusts and family companies. As a passionate believer in the crucial role of charitable and community organisations, he also spends a significant amount of his time advising the not for profit and community sectors on Board governance, restructuring and constitutional review, mergers and acquisitions, legal compliance and risk management especially in the aged care, retirement and disability sectors. Brian is a popular presenter in public forums on elder law issues and is also regularly invited to address the changing legal dynamics and needs of the aged care and disability sectors at industry conferences. In 2014, for the second year in a row, Brian was named one of Australia’s best lawyers in Retirement Villages and Senior Living Law. Qualifications, Memberships and Other Contributions: •Bachelor of Arts – University of Queensland •Bachelor of Laws (Hons) – University of Queensland •Deputy Chair – Queensland Law Society’s Elder Law Committee •Former part time member – Queensland Law Reform Commission •International member – National Academy of Elder Law Attorneys of America •Member – Queensland Law Society •Approved Facilitator for Corporate Governance – Aged Care Standards and Accreditation Agency •Member – QPAC Choir •Adjunct Lecturer – Griffith University

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