Financial abuse highlights breach of trust

Elderly man with dementiaMany will have read the article about financial abuse  in the Bendigo Advertiser on the 23rd of August concerning a local woman convicted of theft in Bendigo County Court. The woman, who had been appointed Power of Attorney, stole more than $117,000 from her elderly father-in-law who suffered from dementia prior to his death in 2009.

The matter highlights the important role that people working with older vulnerable people can play in identifying an abusive situation. Bank tellers, aged care workers, district nurses, health and community care staff are often in a position that enables them to identify abusive or potentially abusive situations. It is important that in situations like this, help is offered to victims before assets or funds are misappropriated by perpetrators.

Financial abuse is one of the most prevalent forms of abuse reported to Seniors Rights Victoria (SRV). SRV is a specialist Community Legal Centre that offers free and confidential assistance to older people at risk of, or experiencing elder abuse. SRV is based in Melbourne but has a small unit based within Loddon Campaspe CLC’s Bendigo office.

Last financial year, SRV dealt with 147 financial abuse matters. Financial abuse accounts for approximately 42% of SRV cases. While only a small number of attorneys abuse their duty of care, the consequences for older and vulnerable people can be disastrous.

The matter just dealt with by the courts may also be indicative of a further problem; attorneys often don’t understand the nature of the fiduciary relationship that is created upon their appointment. They don’t realise the strict obligations that relationship imposes, for example the need to avoid conflicts of interest, to act in the best interests of the donor, to keep good records and, most importantly, to respect the donor’s wishes and, as far as possible, to give effect to those wishes.

The Office of the Public Advocate and the Guardianship and Administration List of the Victorian Civil and Administrative Tribunal have the power to investigate the actions of an attorney and, if necessary, require an attorney to provide proper accounts. An individual may elect to revoke a Power of Attorney. VCAT can also revoke a Power of Attorney. Anyone can refer a matter to the Office of the Public Advocate or VCAT for investigation.

In instances where there has been a serious breach of duty, the matter should be referred to the Police for investigation.

Unfortunately VCAT does not have the power to order repayment of funds misappropriated and it is often necessary for a donor to pursue civil action in another jurisdiction if they wish to recover funds.

The power to order repayment is yet another recommendation contained within the Victorian Law Reform Commission’s Guardianship inquiry, which was completed in February this year and which is currently before the Victorian Parliament.

We urge the Victorian Parliament to heed the recommendations of the Victorian Law Reform Commission’s final report, including the registration of Powers of Attorney and the provision of better training for attorneys, to help prevent the future abuse of vulnerable older Victorians.

Tabitha O’Shea, Community Lawyer, Seniors Rights Victoria
23 August 2013

 

Photo credit: Susan NYC / Foter / CC BY-NC-ND

Please note: the above image is provided for illustrative purposes only and does not represent any person related to the matter referred to in this post.

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