print

In the year of the Older Person there's been a lot of publicity about the benefits of ageing but the image not seen in glossy TV ads is that of the growing problem of elder abuse. This abuse takes several forms from physical to financial to psychological and deprives older people of their freedom, their rights and their dignity. BRIAN HERD is among a handful of lawyers who have taken on Elder Law as a specialty. He's seen some graphic examples of how vulnerable and frightened older people can be taken advantage of by those who are supposed to be protecting them. Is it time for an Older Person's ombudsman?

Also on this week's Law Report, a look at the costly and complex world of art crime. Art and cultural crime on a global scale is in the top five global crimes, coming in just behind drug dealing, arms trading and money laundering. Theft, forgery, embezzlement and even murder form part of the web of criminal activity which surrounds the trade in valuable art works and many police forces , notably in Europe have separate units devoted to identifying and prosecuting this type of crime. Detective Sergeant BRYAN HANLEY is a rarity in the Queensland police force - a cop with a fine arts degree - but his knowledge has landed him an FBI scholarship to study art crime policing techniques around the world. Bryan Hanley says fraud is the major threat in the Australian market , particularly involving indigenous art. We'll hear from Aboriginal artist SCOTTY MARTIN about identifying the creator of an unsigned work.

Overseas, a major group of art which has been notoriously difficult to track has been that which disappeared during forced sales - known as "Jew auctions" - in Nazi Germany prior to the Second World War. Art researcher SHARNE THOMAS says details of these sales have only recently come to light since the records were declassified. And many gallery owners are now facing court challenges to the validity of their ownership of the works. ANDREW KENYON from the Law school at the University of Melbourne explains the legal question mark over artworks which were forcibly acquired.

Program Transcript

This week The Law Report looks at how the law tackles fraud, forgery and filching in the art world. First though, we look at an emerging legal specialty to protect the rights of the older person: Elder law!
.
As the International Year of the Older Person draws to an end, and the population continues to age, a new legal specialty is emerging around the country. With me to discuss elder law is Brisbane lawyer, Brian Herd of Carne and Herd. Brian, what does elder law encompass exactly?

Brian Herd: Well Susanna, with the emphasis on positive ageing, longer life expectancy and the increasing complexities of retirement, the third age of our lives brings many choices and decisions, which we never used to face before. We have for example, a raft of pension and benefit legislation to address, the gyrations of superannuation, lifestyle planning concerning retirement villages, hostels and nursing homes, family trusts for example, substitute decision making with enduring powers of attorney and advance health directives. And not to forget, of course, the rights of older people as grandparents, which is often overlooked.

Susanna Lobez: So you say that really elder law becomes relevant and kicks in on retirement; is that because you've left the workforce and you're more vulnerable financially because you're living on your savings?

Brian Herd: That's exactly right. You don't have the security of a job, of regular income, and you have to plan of course, both to how to use your resources and what sort of lifestyle you're going to have with those resources. And that's a very good and very hard planning process, which a lot of people of course overlook, and then they get unfortunately into retirement and start to think about it too late.

Susanna Lobez: One example of problems faced by older people is the incidence of what's called elder abuse. What are we talking about here? What kind of examples of elder abuse have you come across, Brian?

Brian Herd: I've come across many examples Susanna. An elderly woman in her 90s in Brisbane was deposited furtively one night by her daughter, at the front door of a nursing home in Brisbane, with a small bag of personal items and a blanket, and left to fend for herself. She was discovered at sunrise by the staff of the nursing home, curled up in a foetal position on the doormat. And this incident represents just one obvious example from my experience, of a much larger gamut of elder abuse, which exists in society but which for the most part remains unreported. You may have heard the old saying, Susanna, 'It's against the law to neglect your child and your pet, but not your mother.'

Susanna Lobez: Who are the abusers likely to be?

Brian Herd: Well the person doing the abusing could be anybody. It could be a spouse, a grandchild, a son or daughter, or other family member, a friend, a neighbour, it could be a financial planner, it could be an attorney, it could be the government. There really is no limit. I've even seen cases where churches have abused older people. There was a recent example, a woman's husband died, his church members came to her assistance and helped her to cope with his death. As a trade-off, the church group became possessive and she signed over her home to them and her pension. The church requested also that various families moving through the district stay with her, and she often had families moving in and out from one week to the next. The church of course saw it as welfare, but she saw it as extremely distressing.

Susanna Lobez: Well that moves us right into the area of financial abuse. What kinds of examples of financial abuse should older people be on the lookout for?

Brian Herd: The most common form of financial abuse can extend from downright criminal conduct, where someone actually steals money from an older person, to a misuse for example, of such devices as the enduring power of attorney. Power of attorney, as many people might know, is where you appoint someone to make decisions for you. Now traditionally, the law says that power of attorney is void and comes to an end once the person who's given the power becomes incapable. So they've introduced what's called an enduring power of attorney, which the name suggests, endures. In other words, once a person becomes incapable, the power of attorney continues on, and endures through that person's incapacity, which is exactly when you want of course, the power of attorney to exist.

Susanna Lobez: So it might have been used in the past to perhaps if a parent was going overseas, they'd leave their adult child in charge of their bank matters, and mortgage payments etc. but you're saying this enduring power of attorney carries on, even if the older person becomes incapable of making their own decisions.

Brian Herd: That's right. The difficulty then becomes in many cases of abuse, that because the person has lost their capacity, they've lost the capacity to revoke the enduring power of attorney. So it can literally last forever.

Susanna Lobez: So what could the relative or trusted friend do under an enduring power of attorney that might jeopardise the life or lifestyle of the older person?

Brian Herd: Well what you've got to understand is that certainly in Queensland for example, the power that an attorney has under an enduring power of attorney, are extremely broad. They can make decisions, for example, about where they live, with whom they live, what they eat, what they wear, whether they have sex with someone. I saw a recent example from a nursing home where an enduring power of attorney who was the daughter of a demented resident, directed the nursing home that a particularly elderly Lothario who was attending his wishes onto her mother in the nursing home, should be deprived of any contact with her mother because she didn't believe her mother should, in her condition, be having any sexual relationships with another person in the nursing home. So you can see in particular that the power that the attorney has is so broad that they can virtually control the whole of a person's life, with the power and the decisions they can make on behalf of that person.
Misuse can extend to using the power of attorney like a blank cheque. Many unscrupulous people who have the power can simply see it as a power to start writing cheques for themselves. There's a recent example for example, of a son of an elderly person who'd been given the power of attorney. He took the decision that because he was spending a considerable amount of time in administering and arranging his mother's affairs, that he should pay himself a fee for the service he was providing. So he regularly drew a large amount of funds from his mother's bank account to pay himself this service fee in the belief he was entitled to do so, which of course he wasn't.

Susanna Lobez: Are enduring powers of attorney something that should be avoided like the plague?

Brian Herd: Well no. While much of what I've accounted may appear to be more like segments from a horror story, I'm firmly of the view that an enduring power of attorney is an essential component of every person's life, be they young or old. All it means however, to protect against the potential for abuse is to make sure you're prudent in what you do when you make an enduring power of attorney. Prudent in terms of who you appoint, prudent in terms of how many people you appoint. For example, it may be wise to appoint two people as opposed to one. And prudent when considering for example, what limitations you might impose on your attorney to make sure they do the right thing by you.

Susanna Lobez: So that might be for instance insisting that your attorney consult with your accountant before making any financial decisions or taking any dramatic financial steps?

Brian Herd: That's exactly right, that would be in fact the most common limitation that people do put in enduring powers of attorney to make sure the attorney consults, so at least someone else knows what the attorney is doing or proposes to do.

Susanna Lobez: Now what about the other side of the spectrum, Brian, where elderly people have no relatives or anyone they can really trust.

Brian Herd: Well in Queensland, certainly a person can appoint a public official known as the Public Trustee, as their enduring attorney. They can also appoint another person in Queensland called the Adult Guardian who can make decisions about their personal and health care concerns. So those bureaucrats can be appointed to make those decisions, and in many cases they do a good job, but in a lot of cases as well, because you are really part of a bureaucracy, there tends to be a concern about the ability of these particular officials to make both decisions that are in the best interests of a particular person, and also to make sure that they consult with perhaps other people who should be consulted before decisions are made.

Susanna Lobez: What should older people do if they think they are being taken advantage of, and what should others do if they think their elderly neighbour or more distant relative is really being treated badly?

Brian Herd: I think the best way to prevent abuse is important for ensuring to keep a network of support with friends, neighbours and family members, to be active in the community as much as possible, and a person should be nothing less than robust in seeking advice from others and making plans in relation to their financial living arrangements where necessary. Just talking to someone about it can be an important step. I don't want to sound patronising, but there are disturbing similarities between child abuse and elder abuse; both the young and the elderly are vulnerable to manipulation and exploitation, they can have little ability or inclination to complain about abuse, they often have very few discrete and effective avenues of complaint apart from the traditional law enforcement recourses which can be intimidating and unresponsive. They often feel that the perceived consequences of complaining can far outweigh the consequences of the abuse, so they stay mum.

Susanna Lobez: Are there any examples from your own experience, where taking a stand or being proactive brought an end to a situation of elder abuse?

Brian Herd: I'll give an example. I won't use her real name, I'll use her name as Mrs Brown. She lived alone in a block of flats; she was diagnosed with early Alzheimer's type dementia, and was visited occasionally by a community worker. The worker noted that Mrs Brown was losing weight and was rapidly becoming more confused. When she was assessed, it was noted that she also had been eating only chicken; her refrigerator was full of them, and some of them were green, but there was nothing else in her refrigerator to eat. She had poor eyesight, could not remember where she went shopping, did not recall having any family, but did recall a nice young man who provided her with the chickens. And on investigation, the nice young man was located living in the same block of flats. He would let Mrs Brown know when he was going to get a chicken meal, and she would order one too. Mrs Brown would then give him $20 when he came back with the chicken meal and she received no change. And it was estimated that over a period of seven months, the young man had acquired some $11,000 from her for providing her with chicken.

Susanna Lobez: That's a lot of chickens.

Brian Herd: That's a lot of chickens. But it came to light only because the community care worker found out and then reported it. The reality is, there are many elder people now who live alone, and a lot of them live alone in their own homes, and eventually their frailty may take over and they become incapable of carrying on their normal lives, and without any extended family to assist them, the only people who can in fact assist them when necessary, are neighbours for example. So being neighbourly is perhaps one of the best devices and forms of protection that older people can have, so far as being concerned about their welfare.

Susanna Lobez: Brisbane lawyer, Brian Herd from law firm Carne and Herd.Another Aussie lawyer who believes more focus should be placed on serving the legal needs of our elders is Sydney lawyer Rodney Lewis, and next year he'll be teaching a course on the topic at the University of Western Sydney, Nepean. So next century more elder law specialists!



Woman: This painting is worth 100-million bucks.
Woman: You shut off the air to drive out the tourists, then they closed the gate to keep everybody out. Diversion, make a lot of noise over there, so over here in this room you can take 100-million off the wall and waltz right out the front door. Oh, that's good.
Susanna Lobez: Rene Russo as insurance investigator Catherine Banning in the movie 'The Thomas Crown Affair', a tale of the daring theft of a precious Monet from a New York gallery. But art crime isn't always so glamorous, it can involve extortion, even murder. Many countries have specialised police divisions dealing with art and cultural crime, but in Australia it's a quite new, although rapidly growing area of investigation. Detective Sergeant Bryan Hanley is a Queensland police officer who's a bit of a rarity: a copper with a fine arts degree. His knowledge and interest has earned him a prestigious FBI Scholarship, which will take him overseas next year to research the latest techniques in solving art and cultural crime, which is right up there with drug smuggling as a global legal problem.

Bryan Hanley: The information, the statistics that we can access, tell us that we can quantify art and cultural property related crime at about fourth in the pecking order, if you like, so we would see drugs as the first in the hierarchy, followed by illegal arms trading, and then money laundering, and then art and cultural property related crime. And I think it needs to be emphasised that whilst globalisation or the fact that crime doesn't respect national borders is very much at the forefront of strategic police thinking at the moment, when we look at the art and cultural property related crime, it's something that over centuries hasn't respected those borders. So the only thing that really has changed from that perspective is the speed with which works can cross those borders and the values of those works which have probably in both cases increased exponentially.

Susanna Lobez: I understand that art related crime is worth billions of dollars a year around the world.

Bryan Hanley: Well the latest figures would put the total and those figures relate mostly to theft, which is quantifiable, between roughly $US5-1/2-billion and $US7-1/2-billion per annum.

Susanna Lobez: There's a range of art related crimes. Take us through some of them.

Bryan Hanley: The first types of crime that we look at are obviously theft, and wherever there is theft we look at receiving of that property. We follow that down through to include fraud related offences and that will include your actual fakes of works as well as the fraudulent manufacture of documents, of authenticity and provenance. And then we look at crimes such as illegally exporting and importing, commonly known as smuggling. So you continue down, you see that there are offences of extortion and a point to make is that none of the crimes are mutually exclusive, they all involve each other and they often involve more serious crime which ranges from murder to kidnapping.

Susanna Lobez: I read that much of the work that is stolen or fraudulently produced or forged, is in fact made to order, or stolen to order. How does that work?

Bryan Hanley: Works are often identified and their theft usually will involve a professional team whereby someone will either select a work and say that that's what they want and then go and have someone steal it for them. Or a person has an opportunity to unlawfully obtain that work will go out in the market before actually stealing it and find a buyer. There are still works which are stolen in a spontaneous manner, and of the significant works these days it's very difficult for them to dispose of those.

Susanna Lobez: Why would someone steal something that they can't ultimately display because of course it has such dubious origins?

Bryan Hanley: There are a multitude of laws and legislation that not only apply on a State and national level, but internationally, and there are opportunities for that legislation to be exploited and for ownership occasionally to change. So that work can actually find its way back onto the market. As well there are what's called 'black collections' where there are people who are quite happy to sit in their basement with a glass of wine and admire their work and no-one else knows about it, except the person who unlawfully obtained it for them.

Susanna Lobez: So what is the biggest concern in art crime in Australia?

Bryan Hanley: Well we're speaking anecdotally at this stage, but the indicators are that probably the fakes and fraud are a bigger concern here in Australia than the theft, especially of significant works of art. But a lot of that work that is faked, that is fraudulent, would be at the lower end of the market scale I'd suggest. If it goes on unchecked, it will cause a lack of confidence in the industry here. We look at that, especially in light of indigenous art.

Susanna Lobez: Tell me about some of the areas where indigenous art is vulnerable? What kind of application might the criminal mind put to indigenous art?

Bryan Hanley: Well we've already seen some examples, and recent commencement of prosecution in other States, where non-indigenous persons have faked indigenous works, which have been sold and bought by some fairly large galleries, including the Gallery of New South Wales.

Susanna Lobez: If someone's purchasing art, or thinking about it, or a gallery's out to invest in some art, what kind of things can they do to protect themselves from being caught up in what may be a fraudulent chain of events?

Bryan Hanley: In this day and age, here we still unfortunately have a buyer beware policy. I'd like to see some more discussion and moving towards the new millennium where we have a policy of due diligence, where there's an auditable trail and where each buyer and seller at every transaction has to make inquiries which can be later traced and scrutinised, to verify the bona fides of that property and its ownership.

Susanna Lobez: How hard is it for instance to verify indigenous art, given that sometimes they aren't signed in the way that perhaps European art is signed.

Bryan Hanley: Certainly there are recent moves afoot to ensure that there is an identifiable mark to validate that authenticity. But like all art, indigenous art to a certain extent, there are unique problems in verifying the authenticity of it.

Susanna Lobez: Detective Sergeant Bryan Hanley, who'll be speaking this week at the Australian Institute of Criminology's Art and Crime Conference in Sydney.
Verifying indigenous work presents a specific challenge in Australia. And it's not simply a question of, 'Did artist X actually paint this picture?' Some stories or images in paintings and songs are only supposed to be painted or sung by particular families or clans, explains artist and composer Scotty Martin from the Wandjina tribes in the Kimberley. At age 13 he went through initiation to earn the right to his stories, so unauthorised use of the images amounts to cultural theft.

Scotty Martin: They showed me how to paint Wandjina, or any painting in a cave, so I had to repaint it or whatever, and that's what I've got to learn from. And that draw, what I done there in that cave what I was painting and the song for the Wandjina, that came into my heart.

Susanna Lobez: Are there rules which tell you which paintings you can do and which you can't do?
Scotty Martin: I can paint only repaint, that's my own paint, or my father or my mother or my grandfather or my uncle. See it's a bit hard for somebody else to come along and paint it. See, the family's got to do it. If those family passed away, someone else can do it, or my son's got to do it.

Susanna Lobez: So it's the same story with the same images in the painting that you and your family can do, that no-one else can do.

Scotty Martin: Only us.

Susanna Lobez: Then it becomes something that identifies you, that identifies you and your family, like a birth certificate.

Scotty Martin: Yes. That's right.

Susanna Lobez: You and your family and the Narinja people don't have documents in written form with words, with typewriters, do you Scotty?

Scotty Martin: No, no.

Susanna Lobez: So is the painting instead of those written words by typewriters?

Scotty Martin: Oh yes, because I'm not a reader and writer, see. Some of us sat down and I'll tell them all the story, whatever, what's happening and what this is all about and that sort of thing, you know.

Susanna Lobez: In whitefella law, I'm sure you know, that they want evidence. Do your paintings tell the evidence of your connection to your land?

Scotty Martin: If I have to go to court, what the questions they ask me, I'll just tell them Well this is my Wandjina, that's where I am, and I'll sing the Wandjina song.

Susanna Lobez: So it proves who you are and which land you belong to?

Scotty Martin: My paintings tell me who I am, song tells me who I am, and my land tells me who I am.

Susanna Lobez: And every other person in your Narinjagroup and in the Wandjina tribes, they see that painting, they hear that song, they know, Scotty Martin?

Scotty Martin: That's right.

Susanna Lobez: The National Indigenous Arts Advocacy Association is working on a new labelling system to try to protect artists and consumers from fraud.
Internationally, fraud, forgeries and theft of art has been made easier to track through the establishment of the Art Loss Register, set up in 1991 by a consortium of galleries and insurance companies. It scans the catalogues of major auction houses to check for items of dubious origin. Sixty years after the start of the Holocaust, efforts to trace art and valuables taken from Jewish people under the Nazi regime have been given a boost as records have been declassified in the last couple of years. According to art researcher, Sharne Thomas,details have emerged about 'Jew Auctions' held in the mid-1930s, in which private collections, such as that of Max Silberberg, were appropriated and dispersed around the globe.

Sharne Thomas: Max Silberberg was an industrialist living in Berlin, and he had a large collection of 19th century paintings that were then in, I think it's 1937, he was forced to sell them in one of the Jew Auctions that were quite common at the time in Berlin.

Susanna Lobez: So this is pre-1939; there were forced auctions of Jewish valuables and art work?

Sharne Thomas: The documents actually are incredible of the Jewish Auctions. They list in detail, all the possessions that were auctioned off. You can have lists that say two saucers, one cup, grandfather clock, Degas painting, and they're very detailed. And that's why we know what was taken from Max Silberberg's collection. Where it ends up after 1937 is the great mystery. Max Silberberg after the Jew Auctions, the whole Silberberg family was then killed in a concentration camp, and he had one surviving son who then went to England and Gerte Silberberg was the wife, so Max Silberberg was her father-in-law.

Susanna Lobez: Now Paul Graupe- he was the Berlin auctioneer, what do we know about him? He was organising these auctions of Jewish valuables.

Sharne Thomas: Yes, one of the interesting things of the research is that you have a situation where the auctioneer, Paul Grauper himself, was Jewish. He managed to escape and go to New York and continue trading as an art dealer, and Max Silberberg died. So one of the dilemmas in examining these records is to try and ascertain under what kind of pressure Paul Grauper was to carry out the auctions, or whether he was collaborating, or, it's very difficult to say.

Susanna Lobez: And Gerte Silberberg brought an action just in 1999. Tell me about what her claim was.

Sharne Thomas: She came across the Van Gogh painting in a German museum, and she put an action in to get it back from the German museum.

Susanna Lobez: She remembered that it was her father-in-law's?

Sharne Thomas: Yes, they'd been seeking to get all of their collection back, so they have the list of what's stolen, which many Jewish families don't have. But in this case, she did, so she was able to prove relatively easily that that in fact belonged to the Silberberg family.

Susanna Lobez: Did she succeed?

Sharne Thomas: She did. She got the painting, the Van Gogh back from the German museum, and it was shortly after that that they found the Pisarro painting, which turned out to be located in an Israeli museum, having gone through to a large collection of a Jewish philanthropist who lived in New York. It was a very famous collection called The Loeb Collection and it had moved into his hands and then he bequested it to the Israeli museum. A double irony in fact, that this stolen painting in the normal course of art trading after the war,found its way into a Jewish collection.

Susanna Lobez: So Mrs Silberberg identified this Pisarro and is she also seeking that back from the Israeli art museum?

Sharne Thomas: She was perhaps going to just donate it to the museum, considering where it did end up.

Susanna Lobez: Why is the Silberberg case so interesting and so noteworthy?

Sharne Thomas: It was the first time that a German museum was making a decision as to whether to give back a painting to a claimant or not, it wasn't going through the courts.

Susanna Lobez: Andrew Kenyon from the University of Melbourne's Law School is a Director the Arts Law Centre of Australia. He explains that a strict legal remedy isn't always the easiest thing to obtain in a title dispute over art.

Andrew Kenyon: The Silberberg case is a good example of the difficulties law faces in relation to Holocaust art claims. You have two parties, and from the law's point of view they're both very worthy claimants. Let's say it's a museum who currently has the work and the descendants of the former owner that lost it in horrific circumstances. Different legal systems throughout the world take a different approach to this, and there's an important point to note, because the works almost invariably move across countries, so that if you're actually going to take an action to court, you get problems not just of what's the law in the Australia if I want to get this stolen work back, but I'm suing in Australia; is it the law here, is it the law in Germany, is it the law in the US? What happens if it's been through all three countries?

Susanna Lobez: You've still got a fight between the current owner who may well have, in all innocence, paid good money for this artistic work, and what might be called the true owner who lost it in circumstances beyond their control.

Andrew Kenyon: One of the important things that's emerging in relation to the holocaust claims is that the role of law is limited and maybe it should be. The museums are taking increasingly a very active role in searching out what's in their collections and various governments and directors' associations are setting out ethical principles, saying Well look, you should try and publicise what's there so if there's lots of works that may have been stolen and there's no claimants, if they exist we'll publicise them, the claimants might come forward. And we won't necessarily rely on the letter of the law. I should note there's another strong trend: that other trend is what's called anti-seizure statutes. A famous work can come on loan to a museum in one country, and it's protected from being sued for by the descendants of former owners.

Susanna Lobez: What's the responsibility and duty of an exhibitor when there might be, or there proves to be a question mark about either the circumstances in which the painting was obtained, or indeed the authenticity of the painting itself.

Andrew Kenyon: From the museum's point of view, in relation to institutional loans, museums don't sue museums much. Museums may not have even asked whether there's good title, increasingly they will and if there isn't, or if someone appears in Australia and sues and says, 'No, no, that's really mine, I've got a claim' the museum could well get caught up in very expensive litigation.

Susanna Lobez: Can you insure against the possibility that someone is going to make a claim on your work based on some 20-year ago incident about which you knew nothing?

Andrew Kenyon: There is insurance in relation to title claims, things like indemnity schemes that the government runs to help facilitate major loans coming to Australia, they don't tend to cover title claims, but private insurance is available. I know it's more popular and common overseas, but it is an issue.

Susanna Lobez: So are we seeing claims about stolen art in Australia go through the courts, or be mediated or whatever, Andrew?

Andrew Kenyon: Claims like the Silberberg case are not common, as they're not common overseas yet, but they're dramatically increasing overseas. Internationally, museums have become very aware of the issue right through this decade, but especially in the last couple of years, and that's filtering through to Australia, so it's more the museum and legal professions being concerned what's the best way to deal with this.

Susanna Lobez: Andrew Kenyon and before him Sharne Thomas.


Thanks for joining me for this week's Law Report. Thanks to Prani West and Carey Dell. I'm Susanna Lobez, talk to you again soon with more law.

back to The Law Report homepage