Elder abuse – a growing societal issue
By Michael Dolan.
A longstanding client comes to see you and asks that you prepare a Power of Attorney for her elderly father who lives in a nursing home. She wishes to be appointed as the sole attorney and says that she’ll take the document to her father for him to sign in front of witnesses. She offers to pay your fee when she collects the document. How should you respond to your client?
It is now well recognised that elder abuse is becoming an increasing issue within our society largely due to the significant advances in science and medicine over the past several decades which have increased human longevity in our country. In a speech given to a legal conference in 2017 the President of the Australian Human Rights Commission, Emeritus Professor Rosalind Croucher AM, said (1):
“Commonly recognised categories of elder abuse include psychological or emotional abuse, financial abuse, physical abuse, neglect, and sexual abuse. These types of abuse overlap, and the very nature of the abuse makes it difficult to identify and respond to……..So, while increasing longevity may be seen to represent triumphs for modern medicine and health care, elder abuse perhaps is the nasty underside of an ageing population.”
Professor Croucher went on to address the role of solicitors in helping to prevent financial elder abuse:
“Pressuring older people to make or change their wills in particular ways are examples of financial abuse, both in general guidelines on elder abuse and raised by stakeholders in the ALRC’s Inquiry. Almost 60% of adult Australians have made a will and 93% of people over 70 years of age have a will. With an ageing population, the potential site for elder abuse in the willmaking context can only grow. Practitioners can and should be placed in the best position they can be to contribute to its prevention……
Wills, as advance planning documents, are a key part of estate planning and are an expected part of a lawyer’s practice—either because it is the kind of practice the lawyer undertakes or as an aspect of serving the wishes of particular clients. A lawyer has an important role in supporting a client to make a will and understand its nature and content. A lawyer can also protect a client in situations of potential undue influence.
In a chapter dedicated to the topic of wills, we discussed the doctrines that deal with situations involving the understanding of testators and influence of one kind or another: testamentary capacity; undue influence in probate; the doctrine of suspicious circumstances and wills formalities. The ALRC also covers the topic of disqualification: the witness-beneficiary rule and the forfeiture rule.
The Australian Solicitors’ Conduct Rules 2015 (2) include the following obligations:
- as a ‘fundamental ethical duty’, to act in the best interests of a client in any matter in which the solicitor represents the client;
- a solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken; and
- a solicitor must follow a client’s lawful, proper and competent instructions.”
The first issue to be addressed in the true to life scenario set out at the beginning of this article is the identification of who is the solicitor’s client. The answer to this question will dictate all that follows.
Clearly, if the solicitor is going to act in the matter, the client is the elderly father. Fulfilling the solicitor’s ethical obligations to the client will require the solicitor to contact the elderly father independently of his longstanding client in order to confirm capacity and to take the instructions and attend upon him to explain the document and its legal consequences before it is signed.
Given that the solicitor’s longstanding client has made the initial approach, a conflict of interest may arise for the solicitor and serious consideration would need to be given to having an independent solicitor take on the task on behalf of the elderly father.
Seniors Rights Victoria has published an excellent on-line guide for lawyers dealing with “assets for care” transactions and it is highly recommended. (3)
- Elder Financial Abuse—Insights from the ALRC’s Elder Abuse Inquiry https://www.humanrights.gov.au/news/speeches/elder-financial-abuse-insights-alrcs-elder-abuse-inquiry
- Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 under the Legal Profession Uniform Law
- Assets for care – a guide for lawyers to assist older clients at risk of financial abusehttps://assetsforcare.seniorsrights.org.au/