Tara (00:54):
In this episode, we have special guest Maryann DeMestre, and she is talking to us about the legal and forensic lens on elder abuse.
(01:05):
So elder abuse remains one of the most pressing issues in succession and protective law. And in this episode, we get to hear a presentation from MaryAnn where she examines how abuse manifests, how it can be detected, and the remedies available to safeguard vulnerable individuals. I really hope you enjoy this conversation with MaryAnn. Now check out the show notes. If you want to watch the video of our conversation on YouTube, you can see the link there. Otherwise, MaryAnn does an incredible job at explaining the principles into how forensic strategies can be used to trace, recover and protect misappropriated assets and how the law can better respond to abuse that is often hidden or ignored. Please enjoy this conversation with MaryAnn.
MaryAnn (01:59):
As Tara said, my name's MaryAnn De Mestre. I'm the principal of M. De Mestre Lawyers and I spend my working life with two different hats, whether that's in the firm or otherwise at Macquarie University. So today my aim is to make it a little bit more practical and educational, bringing both my academic and my lawyer hat here for you guys. So the session is called Guardianship or Grip, looking at the legal or forensic lens of elder abuse. And hopefully by the end of the hour, I want it to feel less like a play on words and more like a genuine question that you guys can take away for your own files. So let's dive in. So straight off the bat, I want to start with a case file. This is one that isn't very dramatic. It's pretty much a very ordinary file. We've got one that most practitioners wouldn't see of issue.
(02:53):
We've got an elderly client that comes to your office with her adult son. She's well-dressed, polite, answers questions coherently. Her son explains that he's been helping with finances. She wants to appoint him. She satisfies your capacity assessment. The son steps out. She says she trusts him completely and you witness the instruments. So nothing at this stage worries you about the file, and that's really the point that's going to be the ongoing premise for us. But I want to move through these four points or these four stops if you like. So the first one is looking at hidden harm. So why perfectly lawful instruments like a power of attorney can be a vehicle for exploitation. Secondly, looking at the red flags and some case studies. So giving you some real world patterns and we'll work through them live together. Thirdly, we're looking at forensic strategy. So tracing, recovering, and preserving, but how to know which one to use.
(03:55):
So number four, looking at remedies, which is the better avenue? Is there a better avenue? Or do we choose both NCAT and the Supreme Court?
(04:04):
Tara, I will pause there and say this presentation is based in New South Wales, so there may be some terms and terminology that will be different, but just for those, this is New South Wales based. And then we're going to finish with a discussion in terms of if you've got any of your own questions or you've had files where you've had to think twice about it so we can come back to that at the end. So I want to start with the premise of the lunch and learn so that you see the whole purpose of today is going to fall on this particular phrase. The greatest vulnerability in elder law today is not doctrinal inadequacy. It is professional complacency in particular with the formal document.
(04:43):
So where formal execution becomes allowable, that's where we start to see relational scrutiny and the risks in converting autonomy into dissipation. So under the guise of compliance. So I want to keep coming back to that phrase because it's a really powerful phrase and the premise is it's our professional responsibility because we are allowing professional complacency and our obligations extend past that initial meeting, the initial signing and for what happens afterwards. So I want to have a look at the scal of the problem. So with elder law, we know it isn't a fringe issue. It's something that is becoming more prevalent. The National Elder Abuse Prevalence Study puts it roughly at one to six Australians that are experiencing some sort of abuse every year. And we will come to some comparable jurisdictions like UK and Canada where we see similar rates. So it isn't just an Australian anomaly, it is experienced and reported across jurisdictions.
(05:45):
But what is distinctive is how little it turns into formal legal intervention relative to the scale. So if we're thinking one to six Australians experience elder abuse, we still see a very low rate of legal intervention. So here are a list of a number of instruments that show up time and time again that we all deal with and come across our desks, whether it's an enduring power of attorney, a guardianship dealing with joint bank accounts, joint tenancies, family arrangements that are dressed up as care, trust, and autonomy. So I want to be really clear about something. It's not necessarily those instruments that are the problem. The premise that I'm trying to raise is although they're legally orthodox and they are very powerful documents, that's exactly why they're getting used. They convert relational trust into legally enforceable authority. So just repeating that, converting relational trust into legally enforceable authority.
(06:47):
So the problem isn't necessarily the tool or the document, it's our willingness as the profession to treat these tools as formal validity and the end of our inquiry. And that is really where it should be. That's the beginning of it. So let's make that premise a little bit more concrete with an example. So the first case study that we're going to have a look at, and I'll say for each of these three case studies we will look at, they're all composite scenarios, things that we've probably dealt with before, but you'll see built-in patterns that are regular that we see repeatedly in practise. So it's not any particular client. It often traverses across a number of matters. So here we have Eleanor, 84, and she's widowed. Mild to moderate cognitive decline, although we think capacity is still intact. Her son, Michael, moves in to help out after a fall at home.
(07:39):
We've got a new enduring power of attorney. It was signed six weeks later naming Michael as the sole attorney. The solicitor sees Eleanor alone for 10 minutes and Michael waits in the car outside. Over the course of the next four months, $640,000 is withdrawn in structured amounts of $10,000. The family home is refinanced and a new joint bank account is opened. Eleanor tells the accountant of 20 years, Michael's just taking care of things now. But if you were given this factual scenario or this file came across your desk, are there any red flags straight off the bat that you see? Firstly, the isolation from longstanding advisors. We have a brand new solicitor that appears on the scene and the accountant of 20 years is silenced somewhat. Secondly, we've got a third-party dominance process. Michael is present at every single stage except for 10 minutes when it's signed.
(08:38):
Thirdly, structuring. Withdrawals that are shaped to sit just under the reporting standards, although I know we've got our AML requirements that have just come in. This was done just before that. But you'll start to see a pattern of similar withdrawals, whether it's at the same location of an ATM or you'll start to see EFT payments or BPay payments that are over a certain amount. It's a pattern. And then fourthly, disproportionate unauthorised benefit. So nothing in the instrument itself expressly authorises the transactions of this scale. So if we go back to the facts, so the premise of it's not the document itself that is the problem, have a valid enduring power of attorney. What we're looking at is our professional obligations as the practitioner in terms of picking up red flags and then addressing them. There's a number of things that should cause you to pause.
(09:31):
So if you take anything from these case studies, it is to pause. There are always options and other avenues to look at. So one thing that you could probably also consider is the urgency. So if Eleanor has come in and she's in a rush, Michael's in the car waiting, she's only got 10 minutes, all of those things should cause you to pause before taking action. And then the question of the pathway forward. If you have concerns about capacity, where are we going to from here? If we're concerned about assets being dissipated, looking at what jurisdictional avenues we have available and what forensic preservation we can look at, and I'm going to come to that. So looking at it in a general way, if there was something that you could take away practically to put into your own files or as an assessment, I like to think about red flags in three buckets, which you'll see on the screen.
(10:25):
The first bucket is instructional. So third party dominated conferences. So if Michael attended it, made the appointment, et cetera. Insistence on urgency, like with that example where Michael's in the car, he's in a no-stopping zone, she's only got 10 minutes, she's nervous and she's anxious that she needs to get out with no clear explanation other than he's waiting in the car and that's my ride. Exclusion of longstanding advisors. So if we see a new solicitor, a new accountant, a new financial planner without a valid reason and a client who seems disengaged, differential, or otherwise emotional for a reason that's not explained. The next bucket to think about in terms of red flags is documentary. So having multiple instruments that are executed in close succession. So whether that's a number of wills, a number of changes of powers of attorney, I'm not saying one every five to 10 years.
(11:24):
What I'm talking about is the standard file where there's been five will changes in the course of a month, for example. But again, to premise that by saying every file and client is different, it's just to give you the example. Making changes whilst the individual is sick or grieving or there's a significant transition of life, or there's a testamentary change that departs significantly or sharply from what has been the historical trend. Then we move to our third bucket, financial. So financial red flags are like with Michael, unexplained withdrawals, frequent cash transactions. So the example I gave about going to the same ATM over and over, especially if the client is elderly and are not in a position to attend the bank, opening new joint bank accounts for convenience, that's often an excuse or word that's given for the need for the joint bank account, and gifts that get quietly re-characterized as loans or reimbursements after the fact.
(12:26):
That's definitely one I'm sure a lot of us have come across in terms of family loans or gifts or reimbursement, and we can come to that in terms of making sure they're properly documented. So none of these on their own prove anything in particular. It's a clustering of the buckets. So looking at each bucket and the items in the bucket to work out whether or not they point to any red flags that you should action. So from the minute that initial call is made to the receptionist, who is calling? Why are they calling? Are they calling on behalf of someone? Making sure that initial inquiry in terms of our professional responsibility starts from that first phone call.
Tara (13:08):
We've also had a question come through from Pam. Would you mind elaborating a little bit more about on the financial column, how it might come to light that some of these financial actions are happening? Because yeah, sometimes as solicitors, we don't get to see any of that and it might be hard to pick up on issues in that financial column.
MaryAnn (13:31):
So it will depend on the circumstances, but often in my experience, we'll have a family member that has been able to obtain a title search and Michael's name has popped up on title and it's unexplained and the transfers for a dollar and they come to you and say, "I've got concerns. Can you do a little bit more digging around this? " Or it may be they have access to some of the bank statements and they've raised concern with the bank and they've come to you to say, "Look, there appears to be some regular transactions that are happening that I know were not mom," for example. So the starting premises, sometimes it can be very difficult to get that evidence, especially the financial off the bat. And it may be that that comes to light later on where we have a suspicion of that financial red flag and it's not until we start the process of an NCAT application or a Supreme Court protective matter that we can then have access to subpoenas to then get that concrete information.
(14:30):
So let's have a look at another case study. Frank is 78, recently widowed, grieving and socially isolated. He has a new neighbour, Dennis, who begins helping groceries, medical appointments, and then Dennis moves in. Within eight months, Frank ads Dennis as a joint tenant on the family home. So I didn't want to go too much, Tara, because Pam's question is very similar to this case study. So I was just wanting to say, hang on there. So a new will is signed and we're naming Dennis as the sole beneficiary. The prior will gave equal shares to the three kids and that's now revoked. Frank's GP makes a notation in the file that he is reliant upon Dennis and the children learned of the changes only after Frank's death, but the home is already passed to Dennis by survivorship and is now entirely outside the estate. But really what we're looking at and what I would like to emphasise is it's not one size fits all.
(15:30):
It may be that more than one equitable doctrine may apply or something that you can plead in the alternative. So if I was a politician, I would answer it by saying it depends. To go further on that, I would say we need some more information. So yes, it may be that we try to plead both or in the alternative, or it may be that we find more about capacity. In this particular case, capacity was never really the issue on the factual scenario and equity doesn't require it. So if we're looking at the doctrines of undue influence and unconscionable conduct to be pleaded, neither of them require incapacity. And that's precisely why post-death family provision litigation can be a poor substitute for lifetime intervention because the house being joint tenancy has already been removed from the substantial size of the estate. So both doctrines could apply here depending on the facts and the circumstances, neither depended on incapacity.
(16:31):
And that's the point. We need to have lifetime intervention. If there are those red flags or a cluster of those red flags, it's our professional responsibility to make sure that we offer some alternatives of action. So like with our second case scenario, how do we reconstruct the dissipation and what can we do about it? So waiting for voluntary disclosure concedes advantage to the wrongdoer. So they already have control over the assets and the information. So sitting with idle hands does nothing for our client. So from day one, if there is a suspicion of red flags or a suspected matter that requires more information, there are a number of things that you can do as a practitioner as a starting point. And that goes to Pam's question earlier. How do we access some of that forensic information? So we can do title searches like that example where the joint tenancy popped up.
(17:31):
We can go back and have a look at the historic transfer document to work out whether a proper consideration was given. We can do corporate and company searches. So looking at caveats, PPSR register, et cetera. The banking, obviously, if we don't have a subpoena, it may be we rely on family members who may have access to some of the historical bank statements and that might be something that comes up post action. But generally it's the transactions are clustering. There's often a pattern. It may be an anomaly in the reporting and looking at speaking with if there are concerns, for example, ANZ have an elder abuse unit. So it may be as an interested family member on behalf of the person raising those concerns. Also, the fact that we can get CCTV footage of ATMs, but that comes with a caveat. Not all banks keep a significant history of those video recordings before it's overwritten.
(18:29):
We can also get the assistance of digital forensics. So this is not a one-size-fits-all. There are other professionals like IT, personal investigators, accountants, forensic accountants, financial planners that we can lean on to help us gather this information, looking at devices and IP logins. So often you may have the individual perpetrator log in as mum and make the transfers as mom, especially with internet banking. So we can go through and have a look at the history, the IP history, work out, well, if mum was in the aged care home, there's no way she would be able to do that. So medical and relational evidence. So again, it may be seeing if you can speak with the regular GP as to whether there's any concerns. Obviously you may be hit with privacy issues and that may be something that's ventilated by a subpoena at a later stage.
(19:22):
But thinking about layperson evidence as well, we're not just relying on a reconstruction based on these sort of forensic documents. You may be able to get a significant amount of information from carers, family members, neighbours to help paint that overall picture of what's happening. Centrelink redirections is another one. And we talked about forensic accountants and others that might be able to assist. So it's not just looking at the total loss at the end. What we're trying to do is map out the transactional pattern, the flow across all accounts and assets from the very beginning. So we're trying to recreate or reconstruct that pattern. So you don't need to remember everything that I've said here or every line, but I think what's really, really important to take away from this is that it's really important to do any or some investigation first before pleading it. So first investigate and second, plead.
(20:19):
Alrighty, we're going to move to our third case study. We've got Margaret. She's 81 with moderate dementia. Her granddaughter, Chloe, is appointed an enduring attorney two years ago and it was uncontroversial. There was nothing wrong with the document. It was formal and it was valid and Margaret had capacity at the time. Margaret's aged care facility flags that her spending doesn't seem to add up. A family friend notices unusual bank SMS alerts. An investigation finds online banking access from an interstate IP address. There's a new device registered, and there's been an email rule implemented silently forwarding bank correspondence. There's been $380,000 in structured withdrawals that have been traced back to an account that's linked to a company that Chloe, the granddaughter co-directs. And this is confirmed via an ASIC extract. Chloe controls all of the documentation here and Margaret no longer has capacity to give evidence.
(21:21):
So where do we go from here? So this is very much a choose your own adventure. Do we look at going to MCAT, the guardianship division? Do we look at going to the Supreme Court or do we look at a stage approach where we deal with both? So something to ask you guys and to put in the chat, where do you think we go first? Is there one that's more important than the other or one that would be more prudent in what we're trying to grapple with for poor Margaret?
Tara (21:48):
MaryAnn, while we're waiting for some comments in the chat, we've had a couple of questions come through again around the sort of practical aspect of tackling this. Celia sort of said, how do you manage the forensic tracing and evidence preparation with privacy issues, especially if they have lost capacity? And then Camille has also said it sounds very expensive to be doing all of this. So how does that work? Do you put in the financial investment to do that before the order is obtained or after? Yeah, so I think if you could at some point touch on how you tackle it practically, I think that would be really appreciated.
MaryAnn (22:32):
So I love how invested everyone is. Everyone's jumping ahead of the slides that are coming. We're coming to it and we'll facilitate a discussion at the end, but I think that's really the point. And again, it depends, it's case specific, but there are those sorts of issues that we need to grapple with in terms of time and expense and also the undercurrent of family dynamics, family conflict and whether they actually feel they have the appetite to pursue it. So yeah, if it's okay, Tara, I'll come back.
Tara (23:03):
Yeah, absolutely. And I can just see in the comments, a lot of people are suggesting NCAT. Someone has suggested going to the police and then a few going with both.
MaryAnn (23:15):
So that's really the answer. It's not one size fits all. There are other non-legal avenues that you could look at, whether that's the fraud squad for the police. Yo could go to the, like I said, with ANZ, their elder abuse unit. It could be we start in NCAT to revoke or review the document at play. Or it may be if we see significant dissipation and we're not able to get all of that forensic information, we're better just to go straight to the protective jurisdiction so that we can then get that avenue. So I will come back for good. I'm glad people are thinking outside the box for non-legal avenues as well. So before we come to a conclusion on plural Margaret and what is the avenue to go down and the trick is there is no correct answer there. I want to give a quick inventory of the different types of remedies or actions that are available in respect to financial elder abuse.
(24:09):
So you'll see on the screen just a number of examples that may be applicable depending on the case that you are presented with, but there is something to notice and that is these sorts of cases can move quickly. And it's not because we all are familiar with these types of pleadings, it's just that the doctrines don't constrain us in terms of what remedies are available. So as we talked about earlier, it may be better to plead in the alternative. So we may start with undue influence, but also plead in the alternative unconscionable conduct. Because as the matter progresses and the more forensics become available, it may be that the elements of unconscionable conduct are what is satisfied. So what I would like to do is start with pathway one. So if we felt that the guardianship division, so I'm dealing with New South Wales only here, is the right avenue based on the factual scenario.
(25:05):
It's a statutory review of the particular document under the Powers of Attorney Act or the Guardianship Act. So what are the strengths then of going to the Guardianship Division over anything else? Well, they have the authority and the ability to not only review the document, they can revoke it, but they can also remove and substitute the person appointed. So whether that's another family member, a professional, or the government body, they can also order accounts so they can ask the individual to produce accounts and records that would not otherwise be available. It's supposed to be accessible and of low cost. It's procedurally informal on purpose. They want it to be an in - person experience and they also have an after-hours avenue, especially for urgent life-threatening matters. But what are the limitations or the constraints of NCAT? And you'll find that with any avenue that you pick, whether that's legal or non-legal.
(26:05):
So they do have a growth in applications that are made and they do have a very high clearance rate. But what is of interest is the fact that only 59% of cases were finalised within their hundred-day target. So what that is showing is yes, there are avenues for urgency if it's provided for in the factual scenario, but it can cause delay. So if it is extremely urgent, we have evidence of significant dissipation, especially if we're dealing with overseas assets as well. The guardianship division may not be the right answer because of the time it takes to get heard. They don't have the capacity to address remedies such as tracing constructive trust and equitable compensation. So if it looks like there are those equitable remedies that we discussed prior that you feel would be more appropriate for the individual case, the guardianship division may not be the avenue.
(27:05):
The other option is to consider whether you seek that urgent review or revocation or whether you decide to skip straight to the Supreme Court. So like with the question we had before, Tara, in terms of how do we know where to go and it seems expensive, often people may go to MCAT as the start because there is no filing fee. There is no hearing fee. It is for the people. It allows you to at least get started. It also has the avenue to allow for, they call it something different in New South Wales but subpoenas, but it requires leave and justification as to why you would like to subpoena, say for example, a particular bank. It doesn't have the same autonomy or reach as the Supreme Court, for example. So what I would like to do is just run through the case of BZD. The tribunal was dealt with a home that was sold for $1.35 million.
(28:01):
The proceeds were redirected to the attorney's personal account. In this particular case, NCAT removed the attorney and appointed the New South Wales trustee and guardian. So we can see here that was very much a stabilisation approach, remove the perpetrator and put in an independent, but there was not a recovery forum. So yes, it does have powers and strengths, but as that example shows us, there are some strains in terms of timing, urgency and the ability of recovery. So I'll give the comparison now with pathway to the Supreme Court. So when we talk about the Supreme Court here in New South Wales, the jurisdiction that I'm meaning to talk about is the Parens Patriad jurisdiction, the protective jurisdiction, because it's flexible, adaptive, and it has the inherent jurisdiction to award things that perhaps may not be able to be awarded under the Supreme Court jurisdiction. So it's flexible, adaptive, and not confide to statute.
(29:05):
It can grant freezing injunctions. I've listed a whole heap there in terms of the doctrinal reach. Equitable compensation like with that example of the ZD, there was not that ability to award that remedy. But there are trade-offs like with the question about this seems like it would be an expensive exercise. It's the cost and the procedural complexity that comes with the Supreme Court because it is substantial. The adversarial structure and nature of the Supreme Court can escalate family conflict. I'm thinking of case examples where Michael, the sons moved into the home. There may be physical elder abuse. There may be concerns in terms of escalating that conflict. And so it may be non-legal avenues first in terms of assistance of the police may be required to protect the individual person. It's not as It's accessible for families and it's not without significant resources. So that's exactly right.
(30:05):
A lot of these cases may not run because of finances, because of family dynamics and conflict. And generally in my experience in the practise of the cases that I've seen, people do not have the stomach to want to run against a family member. So another case to think about here is the case of LaSelva, and that was a 2025 Supreme Court decision. Here we had $1.3 million that was withdrawn under a valid enduring power of attorney. So $1.3 million that was transferred over the space of months. We're not talking about years, we're talking about rapid transfers and withdrawals over a short period of time. So there was no forgery or incapacity issues. We had a formal document. It was really vulnerability within that fiduciary relationship, and that was enough to then unwind those transactions. So hitting the Supreme Court avenue in this circumstance allowed for a review and revocation of the power of attorney.
(31:06):
It also meant that other remedies were available in terms of tracing and recovery. So I think that's really the main point that I'd like to raise for the entirety of the session in terms of which pathway to choose. Capacity often is not the only pleading that we can run with. There are a number of doctrinal pleadings and remedies that can be considered in these sorts of cases. And it may be that the Supreme Court is the avenue for you if there is that type of relief that you're seeking. So if I was to hone in or emphasise a point, it would be it's a case-by-case analysis and knowing that there are not only legal, but non-legal avenues. So whether that's leaning on elder abuse hotlines or support groups or seeking counselling and psychology, getting assistance from the police, and like the example I gave when Michael moved in with mom, it may be that we have to preserve and protect the individual first before we then take that proactive step of tracing, collecting evidence and then pursuing.
(32:11):
So just to give a high level executive overview over those two formal legal avenues, a couple of things to consider when that file hits your desk as to which avenue to take. And like I said, choose your adventure. There's no right answer. It can be, is it urgent? So what is the speed in which we need to stabilise what's happening? So NCAT can be fast. It does have an after hours, but you need to be able to prove expediency. So what is the reason or justification for urgency? The Supreme Court, depending on sometimes can be slower, especially if it's the case that we need formal pleadings and evidence before we can have it ventilated. Although I say that with a caveat because we do have the duty list, we do have circumstances where we can expedite the process. Cost-wise, NCAT is free. There's no hearing fee.
(33:05):
It's usually the individual family member that represents themselves as the interested party or on behalf of the person if they've lost capacity. You can have legal professional assistance, but obviously that requires permission or leave of the court, and that may be an individual expense that you are met with. Expense in terms of the Supreme Court while you're dealing with legal fees, filing fees, hearing fees. So that may be a restraint in terms of checking that avenue. And we went through the remedial depth in terms of what avenue remedies are available and what is it best used for. So making that discretionary decision about whether we need early intervention or whether we're addressing a large scale historic dissipation of assets and deciding therefore what the best avenue is. So for Margaret's example that we just dealt with the case study, it could be that NCAT is our first avenue.
(33:58):
Let's get Chloe revoked from that authority and have an independent appointed as the manager. You could then look at the Supreme Court to freeze and trace funds, or it may be because of the factual circumstances and the significance of dissipation, we go down the Supreme Court route. So what I wanted to pause and have a look at is Australia. So Australia-wide, our stance on elder abuse and reacting to elder abuse versus other jurisdictions. So to be frank, our model is reactive, not proactive. It really depends on an interested person or family member noticing an issue or a red flag and then pursuing and complaining about it. Whereas there are other jurisdictions that supervise proactively. And I think that may also be something we need to look at in terms of future reform. For example, in the UK, the Office of the Public Guardian supervises attorneys under the Mental Capacity Act so they can investigate and refer matters to the court of protection.
(35:03):
That's something that we don't offer here. In Canada, the public guardian and trustee offices in provinces like British Columbia hold proactive audit and investigative authority so they can actually step in and audit accounts. In New Zealand, a little bit closer to home, family court oversight of enduring powers of attorney can be established rather than it being complaint driven like we have here. And in the United States, the Adult Protective Services combines statutory reporting obligations with civil recovery coordination. And I think something like that model may be something that we should look to in the future. But Tara, that's probably a talk for another time in terms of elder abuse reform. But one question that I wanted to pose to everybody that's listening was which reform or which country or jurisdiction do you guys think might be something that we should look at ourselves? I mean, to me, the fact that New Zealand allows for family oversight, so it goes back to that theory of substituted decision-making versus supported decision-making and how much autonomy do we want to give the family and the individual person?
(36:17):
You've got a couple of examples there in terms of Canada, the US, the UK, and New Zealand to see whether you guys think there is a better approach. And it's a hypothetical question, something that we can take away from today to think about because no forum or framework is correct or better than another. We learn from history and experience, and I definitely think it's an open-ended hypothetical. So to give you guys a bit of a practical takeaway or a practitioner checklist that you guys can take back to your desk, I think it's really important to think about these six action items. Ask of every orderly all perfect file, does this file look too perfect? So like with our first case study, we had the older lady, no issues as to capacity, nothing wrong with the formal validity of the document, but everything unravelled after that point.
(37:13):
So thinking about and second guessing and taking a moment to pause, does this seem too perfect? Second, and I all know we know this, but I think circumstances, whether it's due to urgency, time, expense, see the older client alone. I know that sounds really basic, but it should be every single time and you need to document it. There's nothing more important than making sure it is very clear that you have asked the other family member to step out of the room and they did leave the room. If they don't leave the room, that should be noted as well. I'll come back to that if need be. Thirdly, our professional responsibility requires us to screen for any red flags of domination, not just capacity. I know we all know the testamentary capacity test. We're all dealing with Banks and Goodfellow, but what we need to do is look beyond that.
(38:07):
We need to think about urgency, like with the example of Michael, he's in the car waiting downstairs. She's only got 10 minutes to do her signing meeting. That should be sending alarm bells for you. And also thinking about third-party control. Is that family member helping or hindering? And do we need to take any further steps on that? Four, making sure we preserve, collect evidence as best we can before we plead. But what I mean by that is like the example of family member comes in with a title search, all of a sudden the neighbour has popped up on title for a dollar consideration. Get as much information, not just from the documentary source, but also the neighbours and the friends and the family members before instigating proceedings, looking at banking records, property title searches, whatever your client can get their hands on. Five, know your forum.
(39:00):
So know the strengths and the weaknesses of each legal jurisdiction in your own state. So for us, we've got the guardianship division and we've got the protective jurisdiction of the Supreme Court. So it's going to be a case by case to work out what is the most apropriate, whether it's one or the other or both, or enlisting those non-legal avenues like we talked about with the police. And sixthly, escalating it early. Don't sit and wait. Delay always advantages that person in control. So the longer we sit on it, too hard basket, we don't know the answer to it, that is giving that perpetrator the advantage. So I want to leave you with a one-liner that I hope sticks in your brain. And for me, this sums up everything that I've been talking to you about and that we've covered today. We are as the professionals in many cases drafting wills for estates that will no longer exist.
(39:55):
So I'll repeat that phrase and then explain it. So we as the professionals are drafting wills at the moment for estates that may no longer ever exist. So what I mean by that is like with the title, guardianship must not become the grip. So the next time a file sits on your desk and seems orderly, I want you to stop, pause and reconsider because it's not necessarily the document as to whether it's valid or not. The question I really want you to think about is whether the autonomy that it purports to give is expressly genuine. So I'm going to hand it over to Tara and to you guys to allow the opportunity if we've got the time to ask some questions and have a general discussion.
Tara (40:41):
Thank you so much, MaryAnn. This is a very complex, heavy topic, and I think you've done a remarkable job at really distilling it into practical takeaways and action pathways. So on behalf of everybody, thank you. We also have some great questions and comments, so I'll just work through them as they came in. Jean has made a comment or a note that you might want to add to saying that often going to the police where you suspect there has been financial elder abuse may not be helpful because the person needs to sign a victim impact statement before the police can act and that might be impact on their care or they may not have capacity or just not interested in doing so. Do you want to add anything to that?
MaryAnn (41:35):
Yeah, I do. And again, it goes back to the politician's answer of it depends on the individual circumstances. So I have had cases where the police have taken a more proactive role. We didn't need a victim impact statement where the urgency of the matter and the history of the matter was known. So like with any legal avenue, non-legal avenues do have restrictions and consequences as well. And I have had similar circumstances where the protected or elderly client can't stomach the fact of making a complaint about their son, even though there's been physical altercations and risks of being pushed down the stairs. It really is an individual circumstance. So yes, whilst I agree, I think it's a case-by-case assessment.
Tara (42:21):
Yeah. And a great point. Thank you, Jean, for just having that in the back of our mind as well about the procedural side of it. Cecilia has asked, "Do you have a view on whether elder law practitioners should work alongside a consultant social worker?"
MaryAnn (42:38):
Yes, I do. I have a very strong view. I, like many others in this area, believe we need a collaborative wholesome approach. It's not one size fits all. I think it's more than just the social worker. We need to work with the police. We need to work with the accountant. We need to work with the financial planner. I often will advocate with financial planners or accountants that I work with to offer that family meeting, the round table if it's appropriate, because what we pick up as a red flag may be different to a financial planner. They may see something unusual with the superannuation that they then can converse with us. I know that sometimes comes with privacy issues, but I have always advocated for the fact that it needs to be a wholesome approach.
Tara (43:21):
Megs just also added in saying that you do need to go to the police if you know the person being isolated. Yeah, it's tough. And Megson said, "Think first before you engage a social worker as they can be biassed and believe they're perpetrator." Joanna's got a question on a similar vein. So how can we escalate when the elder is reluctant to proceed due to fears that their child will go to jail for taking their money or they're otherwise reluctant to proceed? We can't make them, but can the other family members intervene even if the elder themselves is reluctant?
MaryAnn (44:01):
So it's a very good question and it comes back to our responsibility of who is our client. So if it's the case that it's another sibling, for example, and they're constituted as an interested person, they can and we can help advocate on their behalf to seek such action. But again, like with the caveat of it depends if they've got the stomach to prosecute against another family member, a sibling, and then also taking into account the protected person's views. Often it will be no, I don't want to cause trouble or I don't want any ramification and there may be issues of capacity. So it's going to come down to who is the client and what those instructions are.
Tara (44:46):
Can I just elaborate on that? This is my own question. So is that where maybe the procedure would be helpful to get them in a safe environment, but you may not pursue remedy or anything with Supreme Court or the police?
MaryAnn (45:05):
So it may be that you just want that individual person taken off or reviewed in terms of the action.
(45:13):
So it may be preemptive in the sense that they've made some silly decisions. We haven't had dissipation yet. Or there's evidence of high conflict. So they've put mom and dad in a care home that we don't necessarily agree with because they want to preserve the inheritance. And that might be enough as a sibling, as an interested person to seek a review and say we don't think that they're acting in mom and dad's best interest. So yes, definitely Tara, that is an avenue or a forum where we're all forced into a room together to be able to ventilate those concerns and have that independent body listen to each person's concerns and evidence and make an executive decision about what's best for mom and dad.
Tara (45:54):
Yeah. And so that's something that say siblings can do without the elder themselves
MaryAnn (46:01):
Often driving...
Tara (46:01):
The process.
MaryAnn (46:02):
Correct. Often NCAT would like the individual protected person to be available for the hearing. They often will start with the older person to try and get their views. They do make that assessment in terms of capacity and incapacity. And it may be they just make a notation to say, look, we gave them the opportunity to be heard. They're not in a position to be part of the process. But yes, there is a sibling or a family member or under the legislation if there's a person in need of protection and you're an interested person like a sibling or a family member, you can go that avenue.
Tara (46:39):
This might be our last question. Camille has actually come through looking at from the other side of things and I'll elaborate it on a bit, but just where there are family arrangements because one of the children is doing a lot, are there precautionary steps that elder can take to make sure that the other family members don't try to claim elder abuse? So especially if one sibling is helping out a lot and the parent is giving them money as remuneration for that. Wha can be done to just try to prevent these claims when it's not abuse?
MaryAnn (47:20):
So I think first and foremost, documenting it. So if it's the case that we're getting reimbursements or we're getting gifts or we're getting loans, making sure it's documented and it's evident to everyone else involved. I mean, from a personal perspective, I'm one of five children and over different periods of time there may be a child that needed financial assistance. I think one that may be controversial, but one that I advocate for is having open lines of communication if appropriate. I think it's important that everyone knows where everyone sits and not waiting until mom and dad have kicked the bucket to then ventilate those issues. So I think keeping a clear record, keeping open lines of communication and being clear as to what our role and responsibility is in that family dynamic.
Tara (48:08):
Can I just add something in? This came up in our TT Precedents Club hot seat recently, and even though I'm a Queensland practitioner, I didn't actually realise how broad the scope was. But in Queensland, I think it is unique to Queensland. Section 87 of the Power of Attorney Act has a presumption of undue influence. So any transaction that happens in respect of the donor where it's a attorney or a relation, business asociate, or close friend of the attorney has a presumption of undue influence as well. So that is something to think about if you are having family dealings and you don't want other family members to challenge it because it's really hard to rebut that presumption. And it's basically very easy to say, "Well, sorry, that transaction was subject to undue influence." So if you're doing things in Queensland, just bear that in mind because as we've talked about in the hot seat and learned, it is extremely powerful.
MaryAnn (49:17):
Yep. So doesn't matter the role. I think making sure you keep your records, keep your notes and knowing your role and responsibility just as you said, Tara.
Tara (49:25):
Yeah. Can I ask one more question? Sory, this is for me too. Are there things that we can do on the planning side? So obviously you've given us our list of being really hypervigilant and alert and not just being asleep at the wheel when things look like they're working perfectly. Are there checks and balances or protocols that we can try to adopt when, for instance, preparing powers of attorney, like not having a sole power of attorney and building checks and balances in? Or do you see that those things don't really work?
MaryAnn (50:01):
Well, I think it's definitely important and the premise that I made in terms of looking at other jurisdictions and what works. I think we're a reactive jurisdiction and I would like to see it be proactive. So for example, in my own practise, being able to give out a flyer or a handout to potential guardians or attorneys to explain these are your roles and responsibilities and educating them in terms of what to do if you think something is suspected to have gone wrong. Like you said with the example of being solely appointed, I don't think there's enough information out there for the layperson to know that there are rights of recourse, not only for the protected person, but also a person of interest to have that review. So it may be part of our duty as well, just making sure in that initial to give them that information to equip them in case something does go wrong.
Tara (50:54):
Yeah. And look, when we really should be more than a mouthpiece I think for our clients and even though our enduring power of attorney documents and appointment of enduring guardians seems simple and they're government forms, there really is so much that can go into structuring the appointments of attorneys and guardians in a way that potentially has inherent checks and balances within it to stop. Because as we can see, you've demonstrated today it can be really challenging to get any kind of remedy or recourse. And even all the sort of family and sentimental issues of actually removing somebody, it's really complex. So I think this has been a great reminder regardless of whether you do more upfront or after the fact administration type work. I think this has been a great refresher on a way of having elder abuse at the back of our mind. Thank you to everybody who has joined in today for your questions.
(51:57):
The questions have been great. I think there might've been a few coming in at the end that we hadn't had time to get to, but we do need to wrap it up because we're at the top of the hour. Any concluding comments, MaryAnn?
MaryAnn (52:08):
I think the premise is always have it in the back of your mind. If anything, that perfect file may be too perfect, so stop pausing and reconsidering.
