Co-authored by Lauren Sleiman
World Elder Abuse Awareness Day falls every year on 15 June. It is a day which represents the world's stance against all manifestations of abuse inflicted on older people. Elder abuse has become a hot topic in recent news but it is far from a newly emerging issue. Unfortunately, as Lawyers in Coleman Greig's Wills & Estate Planning team, we continue to bear witness to elder abuse in day-to-day practice. We actively work to equip clients with the knowledge they need to identify abuse and to inform clients of the courses of action available to them in redressing the exploitation of older persons.
What is elder abuse?
According to the World Health Organisation, elder abuse is 'a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person'. Contrary to popular opinion, elder abuse is not limited to physical abuse - it may be psychological, sexual, financial or neglect.
A study conducted by the Australian Institute of Family Studies found amongst . Financial abuse is the illegal or improper exploitation or use of funds or other resources of an older person. In our observations as legal practitioners', clients are amongst the most vulnerable. Elderly people are often more dependent upon others, such as a family member, to conduct their financial affairs. Such arrangements can leave an older person open to the possibility of being left financially destitute due to unscrupulous behaviour by those who control over or have access to their finances.
Although not exhaustive, some examples of financial elder abuse include:
- Not having a say in regards to financial decisions that affect them;
- Being refused access to finances;
- Funds being used by other persons for unauthorised purposes, such as for the benefit of other family members or third parties;
- Being coerced into changing legal documents such as a will or Power of Attorney;
- Withholding of finances or refusal to pay expenses necessary for the welfare of the elderly individual; and
- Sale of an elderly person's assets such as property, when it may not be in their best interests.
No-one ever anticipates finding themselves as a victim of elder abuse. However, to prevent such abuse, it is extremely important to plan ahead and to establish a succession plan before you become incapacitated.
Protecting yourself through an Enduring Power of Attorney
An Enduring Power of Attorney is legal document that gives another person the power to deal with your assets and financial affairs while you are still alive. It continues to operate if you become mentally incapacitated.
A Power of Attorney allows the appointment of other persons to act together or separately in your best interests in relation to financial matters and can include various mechanisms that safeguard against financial abuse. For example, your Enduring Power of Attorney document may stipulate that two attorneys must act jointly in order to carry out certain financial actions. This can act as a check and balance on attorneys and ensure that there is no misuse of power. Additionally, the document will specify when it becomes operative. For example, you may elect for an Enduring Power of Attorney to only become operative in the event of incapacity, therefore ensuring greater autonomy over your finances.
Other conditions and limitations should be considered, such as actions you would not want an attorney to undertake (e.g., a sale of a particular property), or a requirement for an attorney to account to an independent third party (such as your accountant) to ensure their actions are in accordance with their fiduciary obligations. Whilst the Powers of Attorney Act 2003 (NSW) prescribes a form, everyone's circumstances are different and they should be approached on an individual basis and tailored according to your own personal circumstances and wishes. Read our Plain English Guide to Power of Attorney for more information.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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