Elder abuse – protection and prevention

Recognising and acting on elder abuse

As solicitors, we are being advised to be increasingly aware of elder abuse with Australia's ageing population. Elder abuse can take many forms including physical abuse, sexual abuse, emotional or psychological abuse, neglect, abandonment, financial abuse and self-neglect.

Lawyers are most likely to encounter financial elder abuse in their work

Whilst solicitors need to be aware of the markers of all types of elder abuse, it is financial abuse that we are most likely to encounter.

Financial abuse usually occurs in a trusted relationship between the elderly person and the perpetrator. Perpetrators can include immediate family members, close friends, neighbours, carers etc. The elderly person is more likely to be vulnerable and dependent on others and the perpetrator then takes advantage of that trust by illegally or improperly using the elderly person's assets, including money.  

Recognising elder abuse

Instances where elder abuse may become apparent include, but are not limited to:

  1. The client's attorney, appointed under Power of Attorney, not acting in the client's best interest;
  2. The transferring of the client's assets for nominal/minimal value or the gifting of client's assets, particularly valuable assets such as a property;
  3. Transfer of a client's asset to another person for them to "hold on their behalf";
  4. The client's relative or friend insists on being present during appointments;
  5. An out of character amendment to the client's Will, Power of Attorney or Appointment of Guardian.

When lawyers suspect elder abuse

As solicitors, if we believe that elder abuse could be an issue, we need to address these issues further. However, our ability to deal with any instances of elder abuse are subject to the Australian Solicitors' Conduct Rules.

Our role as a solicitor is to:

  1. act in the best interests of the client;
  2. follow the client's lawful, proper and competent instructions; and
  3. not disclose any information which is confidential to a client unless there is an exemption. Exemptions could occur, for example, if the client provides consent to disclose certain information or if the client or another person is in imminent serious physical harm.

Therefore, we need to ensure the client is properly advised in relation to the matters they are seeking advice on.

Once advised, we need to proceed based on the client's instructions, even if those instructions are to not follow up any suspected cases of elder abuse.

Confirming a client has capacity to provide instructions

In order to advise appropriately and act on the client's instructions, we need to ensure that the client has the requisite capacity to understand the advice being provided and to make an informed decision as to how to proceed in a matter. We may request for our client to undertake a mental capacity assessment to ensure they can be appropriately advised and provide instructions in relation to any matter.

We cannot disclose any information which is confidential to a client, to a third party.

Get help

If you, or someone you know, are a victim of elder abuse then the following are key contacts to obtain assistance:

Need to update your estate planning documents?

If you, or someone you know, is experiencing elder abuse in any form, updating your estate planning documents can be one component of protecting your assets.

We can assist you to update (or write new):

Or you can contact us through reception by phone or email to arrange a consultation.

Phone: 02 9997 2111

Email:  info@ealawyers.com.au

You can find the most recent ‘Coronavirus and Client Services’ updates by clicking here.

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This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact E&A Lawyers.

Get in touch with the author:
Lauren Weatherley


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