What is elder abuse and how does it impact estate planning?

In 2019 approximately 30 million people experienced some form of abuse, including elder abuse. Due to the pandemic, these statistics have risen significantly throughout 2020, with an increasing number of reports of abuse and neglect of older people. Both in care facilities and within their own homes. (1)

What is elder abuse?

According to the World Health Organisation, elder abuse is when there is a relationship of trust between a client (in this case, the elder) and the Will beneficiary, and the elder is experiencing harm or distress due to the pressure to execute or change their Will. (2) Elder abuse also includes financial abuse, where an elder’s assets are improperly distributed by, for example, duress or coercion. (3) Elderly persons are more susceptible to experiencing financial abuse when they are vulnerable, for example by being lonely, frail, isolated or lacking education.

Signs to look out for

The solicitor’s role is integral to managing potential elder abuse. If you or a loved-one feel like you are being taken advantage of, it is important to raise it with a solicitor.

When executing Wills, solicitors must be able to suspect or identify when their client is experiencing elderly financial abuse. (4)

Signs that may indicate elder abuse includes

  • frequent changes in the appointment of Enduring Power of Attorney,

  • family members or carers who influence the elderly person’s decision making abilities,

  • loss of personal belongings and money from bank accounts, as well as the

  • expression of fear, anxiety or confusion when discussing finances and assets.

The earlier the solicitor identifies elder financial abuse, the quicker they will be able to manage and mitigate it.

The solicitor’s duties to mitigate the risks of elder abuse

Solicitors are required to identify potential conflict or elder abuse and take appropriate measures to mitigate its impact to the client. The solicitor must take instructions directly, and only, from the client when other persons aren’t present, arrange the meeting for an appropriate duration of time and in an appropriate environment, as well as recognise situations where an interpreter or support person is required.

During the appointment, solicitors must clearly:

  • identify themselves as the legal practitioner,

  • clarify the legal work to be performed,

  • ensure that the client understands the nature and effect of the legal transaction,

  • ascertain the client’s mental capacity and volition,

  • identify any warning signs when they arise, and

  • reflect on the advice provided. (5) It is essential that solicitors inform their clients of all available options and encourage them to make their decisions independently.

Elder abuse is a growing concern and it is crucial, now more than ever, to ensure it doesn’t impact your Will drafting and Estate Planning arrangements. A solicitor can help you get your Will set up according to your own personal wishes.

We offer no cost, no obligation initial appointments so that you can find out where you stand and exactly how much it will cost you to get your Will and/or Estate Plan set up. We offer fixed fees and payment plans - your wishes, your way.

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(1) World Health Organisation, 2020 World Elder Abuse Awareness Day: the impact of COVID-19 on abuse and neglect of older people (2020).

(2) World Health Organisation, The Toronto Declaration on the Global Prevention of Elder Abuse (2002).

(3) Australian Law Reform Commission, Pressure to change wills and financial abuse (2016).

(4) Australian Human Rights Commission, Elder Financial Abuse – Insights from the ALRC’s Elder Abuse Inquiry (2017).

(5) Law Council of Australia, Best Practice Guide for Legal Practitioners in Relation to Elder Financial Abuse (2020).