Recent statistics released by Advocare have revealed that there has been a rise in elder abuse.  In the past two months alone, Advocare has received more than 200 calls for help which is double the number of calls received in the same period last year.  Almost one third of those calls concerned financial elder abuse[1].

Abuse by Adult Children: One Recent Example

An example of the kind of elder abuse that can take place can be gleaned from the State Administrative Tribunal case of MPM [2018] WASAT 59 (MPM) which concerned an application for costs.

In January 2018, the brother of an elderly lady diagnosed with dementia brought an urgent application before the State Administrative Tribunal to protect his sister’s estate from her own adult children.

The application was made for the purpose of intervening in an enduring power of attorney executed by the represented person which appointed her daughter as her attorney.    Banking records were tendered as evidence before the Tribunal which contained numerous transfers of money from the represented person’s bank account into her daughter’s account claimed to be in the vicinity of $450,000.  There were too many transactional entries for the Tribunal Member to describe in her reasons for decision.  The exact value was disputed by the represented person’s daughter, but ultimately she agreed that the amount transferred from the estate may have been $250,000.  No plausible explanation was provided by the represented person’s daughter as to the sometimes, daily, monetary transfers.

There was also a level of conflict within the family between the represented person, her daughter and her son.  The represented person had obtained a violence restraining order against her adult son in mid-2017.

The financial abuse was so significant that the application involved an emergency order to prevent further loss to the represented person’s estate.    At the time, the represented person’s home had been sold by her daughter and the settlement was imminent.

The Tribunal ultimately found that the attorney had breached her duty to act with reasonable diligence to protect the interests of the represented person by her mismanagement of the represented person’s estate, and the transfer to herself of funds belonging to the represented person.

An Award of Costs in Exceptional Circumstances

At the conclusion of the hearing, Counsel for the brother of the represented person foreshadowed a costs application would be made.  In MPM, the applicant was successful in seeking that his legal costs be paid from the represented person’s estate.  This is significant because the State Administrative Tribunal’s starting point in respect of costs is that parties to proceedings before the Tribunal should bear their own costs.

In the matter, the Tribunal accepted that, had the applicant not taken legal advice and assistance and had enquiries not been made on his behalf by his solicitor in respect of the financial affairs of the proposed represented person, including the foresight to seek an urgent order to protect the proceeds of sale of the represented person’s house, it is highly likely that the funds of the represented person would have been further dissipated by her attorney.  In considering all of the circumstances, including but not limited to those mentioned in this article, the Tribunal considered that it was reasonable for the applicant’s costs to be paid from the represented person’s estate.

It is of serious concern that some adult children are developing what is termed ‘inheritance entitlement’ and committing acts of financial elder abuse against their parents under the pretext that ‘they are going to get the money eventually anyway’.  We need to protect older and more vulnerable members of society.

If you are concerned, or have concerns about a friend or family member who may be experiencing elder abuse, it is important to get advice as soon as possible. If you would like advice, please contact Rob Durey or Jacinta Binstead on (08) 6166 9000.

[1] The West Australian, ‘Rise in Calls to Elder Abuse Hot Line sparks fears of ‘Inheritance Entitlement’, https://thewest.com.au/news/wa/rise-is-calls-to-elder-abuse-hot-line-sparks-fears-of-inheritance-entitlement-ng-b881034485z