A Guide To Help Lawyers Identify And Address Elder Financial Abuse

The Law Council of Australia, an information source I was unfamiliar with until recently, released a new legal guide entitled “Best Practice Guide for Legal Practitioners in relation to Elder Financial Abuse.”

The Guide is intended to assist legal practitioners to identify and address potential issues regarding elder financial abuse in the preparation and execution of wills and other estate planning documents, such as powers of attorneys, advance medical directives (living wills), revocable and irrevocable trusts and other planning tools.

Elder abuse, as defined by the World Health Organization, 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’. It can take various forms, such as physical abuse, psychological or emotional abuse, financial abuse, sexual abuse, and neglect.

Financial exploitation is one of the most common types of elder abuse. Elder financial abuse includes: incurring bills for which an older person is responsible; stealing money or goods; and abusing power of attorney arrangements. Other behaviors that may be financial abuse include: refusing to repay a loan; living with someone without helping to pay for expenses; failing to care for someone after agreeing to do so in exchange for money or property; and forcing someone or wrongly influencing someone to sign a will, power of attorney or other estate planning document.

From the Law Council of Australia website:

Law Council President, Ms. Pauline Wright, says that it has never been more important for Australia and the legal profession to do more to ensure that the human rights of older persons are strongly protected.

“Today, one in every six Australians (15.9%) are aged 65 and over, and these figures are set to increase,” Ms. Wright said.

“Legal practitioners are in a key position to recognize and prevent the abuse of older persons, including financial abuse,” Ms. Wright said.

Recent public reports and inquiries, including the ongoing Royal Commission into Aged Care Quality and Safety, have told distressing stories of elder abuse that is often preventable. In response to a recommendation from the Australian Law Reform Commission’s 2017 Report, the Elder Abuse Guide was developed.

The Guide includes topics such as setting up meetings effectively, taking instructions, ensuring appropriate support, communicating effectively with the client, checking for decision making capacity, being alert to the warning signs of potential abuse, and keeping records.

“There are growing concerns about the increasing rates of elder abuse in Australia. That is why it is imperative that steps are taken to address the issue and implement changes to protect older Australians,’ Ms. Wright said.

How many older Americans are abused?

Elder financial abuse is a growing problem in the United States too. Approximately 1 in 10 Americans aged 60+ have experienced some form of elder abuse. Some estimates range as high as 5 million elders who are abused each year. One study estimated that only 1 in 14 cases of abuse are reported to authorities. Financial abuse by itself costs older Americans over $2.6 billion dollars annually. Research indicates that those with cognitive incapacities suffer 100% greater economic losses than those without such incapacities

The Best Practice Guide for Legal Practitioners in relation to Elder Financial Abuse is annexed – [gview file=”https://vanarellilaw.com/wp-content/uploads/2020/09/Best-practice-guide-for-legal-practitioners-in-relation-to-elderfinancial-abuse.pdf”]

For additional information concerning elder abuse actions, visit: