The financial elder abuse often occurs within families and may go unreported and unaddressed, yet a range of legal remedies should be considered. The growing incidence of age-related medical conditions such as dementia results in many people relying on others to help them manage their financial affairs. This dependence on others may lead to a person making another person a signatory to their bank accounts or appointing a person as their enduring attorney under an Enduring Power of Attorney.
How does financial elder abuse occur?
Financial elder abuse may occur in many ways. It may be criminal and involve stealing, misappropriation or fraud.
Financial elder abuse may also occur in subtle ways. For instance, undue influence may be exerted by one person over another resulting in the weaker party signing over property to the stronger party or gifting belongings or money to the stronger party. Similarly, a stronger party may accepts gifts from a disadvantaged party or a person that suffers a disability.
Enduring Powers of Attorneys are a common means by which one party can access the property of another and use the other person’s money and property to benefit themselves. Refer to our information sheet on Enduring Powers of Attorney.
What to do about financial elder abuse?
A situation of financial elder abuse may warrant a combination of responses.
If a person has stolen property or misappropriated another’s property or used fraud to procure a person’s property, it may be appropriate to go to the Police and to ask for the matter to be investigated.
Appropriate legal action may be required in an effort to recover property. If a home or property has been transferred to another person in a situation involving financial elder abuse, it may be necessary to consult a lawyer to take the appropriate legal action.
The following legal responses may be considered:
- Lodgement of a caveat with the NSW Land Registry Services to stop any further transfers of the property
- Revoking bank signatory arrangements or Enduring Power of Attorney or other means by which the abuse is occurring.
- Court proceedings for remedies to set aside a transfer of the property
- Court proceedings to obtain compensation for what has occurred
- Legal advice, including an awareness of time limits that apply in relation to applications for compensation due to the misuse of an Enduring Power of Attorney
- If applicable, consider obtaining an intervention order for economic abuse and orders to oust an offender from a property; and
- Revoking any Nominees appointed under the Social Security Act.
Are the legal remedies effective?
Legal action may be very effective to prevent further abuse from occurring and assist in the recovery of property.
Many cases concerning financial elder abuse are heard by the courts in New South Wales each year. Given that we have an ageing population, this trend is likely to continue.
It is important to act promptly. Taking the necessary action, such as lodging a caveat, may stop property from being sold or otherwise disposed of. Caveats allow time for other court action to take place or for negotiations to be entered into with the offending party.
How to avoid financial elder abuse?
It is important to protect ourselves against the risk of financial elder abuse.
Simple solutions may include:
- appointing two people to act as your enduring attorneys can reduce the possibility of your attorneys acting out of self-interest and without accountability; and
- it is often better to appoint two people to be signatories to your bank accounts rather than entrusting your affairs to one person.
The importance of receiving independent legal advice
It is important for you to obtain independent legal advice before you make any financial decisions such as the transfer of your home that may benefit another person.
Ensure that the legal professional with whom you consult acts only with your interests in mind rather than the interests of anyone close to you or otherwise associated with you.
How to start?
You are welcome to contact our Elder Law team on 02 4929 3995 or simply complete our confidential online inquiry form.