Elder Abuse - How to protect your assets

What is Elder Abuse?

Elder abuse is any act which causes harm to an older person and is carried out by someone they know and trust, usually a family member. The abuse may be physical, social, financial, psychological and can include mistreatment and neglect.

Financial Abuse

Financial abuse is the most common form of elder abuse. There are steps that can be taken to help prevent financial elder abuse from occurring including, but not limited to, the following:

• Obtain independent advice about your financial matters
• Maintain an up-to-date Will
• Do not loan money to family members without formal and legally binding arrangements in place to recover the money if required. This is especially important if a relationship between family members breaks down, while money remains outstanding on the loan.

Powers of Attorney

One of the best forms of protection against the possibility of financial abuse occurring is for a person to have an Enduring Power of Attorney for financial matters. If, for whatever reason, a person does not want to entrust this responsibility to their family, they can choose to appoint a trusted friend or advisor as their Attorney for financial matters.

Appointing an Attorney

Appointing an attorney is an important decision, and there are a number of factors that ought to be considered when appointing someone to act on your behalf, especially considering that the appointment will continue in circumstances where you have lost the mental capacity to make decisions for yourself.

When appointing an attorney, you should only appoint someone who you have trust in, and who has an understanding of what your wishes are and will carry those wishes out for you. You should give thought as to whether you wish to place any limitations or conditions on the appointment. For example, you may wish to put restrictions on the types of decisions that your attorney might make, such as the authority to only deal with your bank accounts and not your real estate assets.

Without any sort of limitations or conditions provided in your Enduring Power of Attorney, your attorney will have the powers to make decision about, among other matters, the following:

1. Buying and selling property on your behalf
2. Paying your bills
3. Doing your banking
4. Communicating with legal professionals on your behalf to facilitate these transactions.

Enduring Power of Attorney

An Enduring Power of Attorney can provide elderly and vulnerable individuals with a sense of security and control over their affairs, and can certainly assist a person when the appointed attorney is a trustworthy individual; however there remains a potential for these powers to be misused.

In understanding the powers that are granted by an Enduring Power of Attorney, and the nature and effect of the appointment, you can look to minimise any potential risk involved in appointing an attorney, and feel secure in your appointment.  

Writing a Will

As with the Enduring Power of Attorney, having an up to date, properly drafted Will can assist in ensuring that there is no undue influence placed upon you when making decisions on how you wish to deal with your estate.

Undue Influence

In the context of the drafting a Will, undue influence involves a person using their position of trust or their relationship with the Will maker to influence them to make decisions in their favour at the detriment of other family members or people in the Will maker's life. This will generally occur when the Will maker is in a vulnerable position - whether elderly or ill- and is dependant on others to assist in other areas of their life.

While a Will can be contested if there are allegations of undue influence, the burden of proof will fall on the person alleging that the Will maker was improperly influenced when making their Will.  

By having your Will drafted by an independent professional, safeguards against potential beneficiaries influencing your decision making process can be put in place, to ensure that your thoughts and intentions in respect to the distribution of your assets are properly considered and carried out.

While it is not always possible, we would recommend having your estate plan in place before you become more dependant on family members for care and assistance.

You should review your Will regularly, especially after significant family events or deaths.

How Sharrock Pitman Legal can help?

If you would like to discuss any concerns you have regarding protecting your assets, or if you would like assistance with preparing your will or estate planning please do not hesitate to contact a member of our Wills & Estates Team by email willsandestates@sharrockpitman.com.au or call 1300 205 506. If you have concerns for your personal safety, you should contact the police.

Further information

More articles on Wills and Succession Planning written by our Wills and Estates Team can be found here.

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The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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