Safeguards to prevent elder abuse are often assisting disgruntled relatives in court battles over inheritances, a new analysis suggests.
Dr Ben Chen from the University of Sydney Law School examined litigation in Australia relating to elder financial abuse and found such legal action is usually launched after the person has died.
Recent reforms in Queensland and Victoria to state guardianship and power-of-attorney laws tend to ban guardians and others who are appointed to make health care or financial decisions for someone who may lack mental capacity from exposing themselves to a conflict of interest. For example, family guardians and attorneys can break the law if they receive gifts from the elderly person they serve.
Chen found this leaves a wide berth for aggrieved relatives to allege that guardians and attorneys have engaged in “elder financial abuse” during posthumous litigation.
“These people go to court with the aim of recovering allegedly stolen money or property from the elderly person’s estate,” Chen said.
“This is particularly egregious when the claim is against the wishes of the deceased person.
“The claims are often of a ‘breach of duty’ nature, against family guardians and attorneys, when such people have only breached their duties to avoid a conflict of interest.”
Chen believes lawmakers should consider relaxing guardianship and power-of-attorney laws: such as when family guardians and attorneys are sued for breaching their duties to avoid a conflict of interest, they should not be found liable if they had merely carried out what the elderly person would have done if he or she had mental capacity.
“Whether people should lose in inheritance litigation should not depend on a mere suspicion of wrongdoing, but on the elderly person’s own wishes,” Chen said.
But Andrew Simpson, the head of wills and estates for Maurice Blackburn, said tougher laws are needed on paid carers and powers of attorney to protect the elderly from abuse.
“We acknowledge the vast majority of paid carers do incredible work in looking after older and more vulnerable people in our community. Unfortunately, there will always be some who will exploit that position of trust for personal gain,” Simpson said.