Financial elder abuse is no longer a hidden problem. The 2017 ALRC report ‘Elder Abuse – A National Legal Response’ has elevated the prevalence of elder abuse as a national issue.
Sadly, in most cases of elder financial abuse the perpetrator is a family member. As identified by the ALRC report, at-risk groups include older women and older people socially isolated and/or dependant on others. Senior lawyer Monique Smiles is seeing an increasing number of cases involving financial elder abuse in private legal practice.
Here are three examples of financial elder abuse, that might sound like a situation you, your loved ones or friends have encountered:
- Susan, a single mother of two adult children, appointed her son and daughter as her enduring attorneys under her enduring power of attorney (EPA). Under the EPA, the son and daughter were able to act separately. A number of years later, Susan began to suffer from dementia and the EPA was invoked. The son took over control of his mother’s financial affairs but did not keep his sister properly aware of the large withdrawals he was making out of their mother’s bank account and from her superannuation fund. After some time, the sister became suspicious. She investigated and realised that her brother was taking large sums of money from her mother’s bank account. The two adult children were unable to resolve the issue between them. The daughter took the matter to the NSW Civil and Administrative Tribunal (NCAT) Guardianship Division who reviewed the operation and effect of their mother’s EPA. The brother and the sister were removed by NCAT as attorneys and in their place the NSW Trustee and Guardian was appointed to look after Susan’s affairs moving forward. The matter was not referred to the police for investigation, although potential criminal charges might well have been relevant.
- Elderly person, Keith, arrives for his appointment at our office accompanied by an adult child/new partner/carer/friend apparently wanting to make a new will. We tell Keith that due to our professional obligations we must meet with him alone. We invite the person with him to wait in reception if they wish. Our lawyer devotes sufficient time to speak with Keith in private. Keith can’t remember what his current will says and doesn’t know whether he owns his home. In fact, Keith doesn’t know why he needs to see a lawyer. As Keith’s mental capacity is in doubt, it would be inappropriate and unethical to make a new will, so we explain why this is the case.
- Janet, a widow, is now suffering advanced dementia. Her only child, Peter, is her enduring attorney under her EPA. Janet’s health hasn’t been good. Peter is spending an increasing amount of time caring for Janet; doing her housework; preparing meals and taking Janet to frequent medical appointments. After some time, it is no longer suitable for Janet to live at home. Peter decides that Janet should move into new accommodation at an aged care facility. Using the EPA, Peter sells Janet’s house for an excellent price and arranges for payment of the bond to secure Janet a place at the aged care facility. There’s quite a bit of money left over from the sale of the house and Peter deposits it into his bank account. Peter is thinking: “What’s the problem? There is no problem is there? I’ll get everything anyway when mum dies – it’s what she would want. Look at all the time and effort I’ve spent looking after mum, I deserve some payment for those services don’t I?” We tell Peter there is a big problem – a clear breach of duty by Peter as Janet’s enduring attorney. Janet is not dead yet and Peter has no right to take her money! Also, Peter has no right to receive any payment for his services unless such payment was clearly detailed in the EPA.
How to protect yourself and others against financial elder abuse
What can you do to safeguard yourself or your loved ones from becoming a victim of financial elder abuse? There is no simple answer because there is no ‘watchdog’ making sure people are doing the right thing and holding them accountable – the system relies on suspected elder abuse being reported.
How can Catherine Henry Lawyers assist you?
Monique Smiles and the Wills and Estate team have expertise in all aspects of estate planning and can help you ensure your final wishes are respected. We can work with you to create an enduring power of attorney that ensures that your wishes are communicated and documented. It is important that you specify what decisions your attorney can make on your behalf. At Catherine Henry Lawyers we are experienced in making sure that our clients are supported in the creation of their important personal documents, including wills and EPAs. Also, we have a specialised litigation team who can assist you if an attorney misuses their power.