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Elder Abuse with MaryAnn De Mestre and Nick Donnelly
Episode 14 • 23rd July 2024 • Your Aged Care Compass • Coral Wilkinson & Michelle Brown
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Elder abuse can take many forms; physical, financial, psychological and social harms. We speak mainly about financial abuse in this episode.

Nick and MaryAnn talk about identifying the “red flags” and how to address them. It’s a fine line between advocating for the elder and pushing too hard. Experience in this area is so important.

MaryAnn discusses who the main perpetrators are, what coercion looks like, and understanding capacity. If people have a will and an enduring power of attorney, they report lower rates of abuse.

 In this episode:

  • What is elder abuse?
  • Who do I report elder abuse to?
  • Red flags for financial abuse
  • What does coercion look like?
  • What does capacity look like?
  • Who are the perpetrators?
  • Power of attorney vs Enduring Power of Attorney vs Enduring Guardianship
  • When each document is appropriate
  • Clear documentation lowers the risk of elder financial abuse
  • Real life examples

Resources Mentioned:

Reporting Elder Abuse:

Connect with MaryAnn De Mestre: 

Connect with Nick Donnelly: 


Connect with Coral Wilkinson: 

  

More about Your Aged Care Compass podcast: 

Are you supporting an older loved one at home and ready to give up because it’s just too hard? Your Aged Care Compass is aimed at anyone who is caring for an older loved one who still lives at home and is wondering what support is available to them.


We're Coral and Michelle, the sisters behind our business, See Me Aged Care Navigators.


Coral is a registered nurse with over 30 years’ experience in both health and aged care. A former assessor with the aged care assessment team, an advocate and author, there’s not much Coral doesn’t know about Australia’s aged care system.


Michelle is a former pharmacist with over 30 years in the public health and private sectors of pharmacy. Michelle is now client care manager for our business. 


Our story started as one of supporting our parents to remain in their own home, to be as independent as possible and remain connected to their community. We reached a point however, of needing extra support and we achieved this because we know Australia’s aged care system so well, we knew what programs could assist us and our parents.


This podcast, Your Aged Care Compass, brings together not only our personal experience in supporting our own ageing parents but also our vast professional experience in supporting other families to keep their loved ones at home. 


We will help you makes sense of Australia’s aged care system, from your first contact with My Aged Care through to the different funding streams and assessment workforces, management options for home care packages and extra funding that people might be eligible for.


There's so much more. Topics relating to dementia and legal and financial considerations will be covered, as well as real life stories of where it went wrong for people and how we guided them to get it right.

 

Your Aged Care Compass will guide you clearly and compassionately to the right support at the right time for your ageing parents and loved ones. 


Like what you hear? Please leave us a Rating and Review. We’d love you to share this podcast with any friends or family who have older loved ones.

 

Transcripts

Coral:

Hi, everyone.

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It's great to have you back for our

next episode of Your Aged Care Compass.

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Today, I'm chatting with Mary Anne de

Mestre and Nick Donnelly, and we're going

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to be discussing a topic that might be

considered uncomfortable, elder abuse.

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Mary Anne is the convener of

Succession Law at Macquarie

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University and founder of M.

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de Mestre Lawyers.

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With over a decade of experience,

Marianne has earned recognition for her

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scholarly pursuits, including finalist

for Partner of the Year, Wills and

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Estates 2024, and finalist for Academic

f the Year, Succession Law in:

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Marianne was served as an independent

referee for law journals and has

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held the title of Adjunct Fellow

at Western Sydney University.

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to knowledge dissemination, Mary Anne

has authored numerous publications

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on wills and estates and elder law,

including a notable parliamentary

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submission on elder abuse.

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Mary Anne has also been a regular

contributor to the New South Wales

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Civil Practice and Procedure text.

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Marianne's contributions to succession law

led to her recognition as a full member

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of STEP through an expertise application.

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Her passion for succession law stems

from her tenure as the tip staff to

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the Honourable Justice Jeff Lindsay.

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Nick is a specialist in elder financial

advice, partnering with families to make

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decisions with them and not for them, and

concerning the transition to residential

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aged care or retirement villages, in

addition to managing home care and

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other elder financial arrangements,

including granny flat agreements.

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Navigating Australia's aged care

framework alone is incredibly difficult.

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However, working together, Nick helps

break down jargon and acronyms, Aiding

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decision making and removing the

stress and anxiety associated with the

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complexity of elder financial advice.

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Mary Anne and Nick, a big topic, but one

that will be great to unpack today, given

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it's a situation people might only become

aware of when they're confronted with it.

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Mary Anne, could you explain to our

listeners, please, what is elder abuse?

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MaryAnn: I think that's a really

great place for us to start.

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Elder abuse, there isn't quite a

definitive definition, , but the

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World Health Organization provides

a definition which I'll read.

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Elder abuse is a single or repeated act

or lack of appropriate action occurring

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within any relationship where there is

an expectation of trust, which causes

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harm or distress to an older person.

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And I think what's really important

to pick out of that definition

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is that term of relationship

and an expectation of trust.

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So these sorts of relationships

can include family members,

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friends, neighbors, and

professionals, such as carers.

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It can also occur outside of the family.

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So in care facilities, and it can

encapsulate a range of different things,

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including physical, psychological,

financial, and social harms.

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And for me as a lawyer, the things

that we often see, uh, it presents as

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financial exploitation, significant

withdrawals from bank accounts.

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Suspicious changes to wills

and powers of attorney and

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transfers of title of property.

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Coral: Mm hmm.

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So when people are faced with the

realization a loved one is being

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abused, or should a carer become

aware a family member might be abusing

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their older loved one, who should

they speak to and what should they do?

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MaryAnn: So that's a really important

question because at the moment it's

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not very clear or clearly advertised

as to where one should really turn to

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or who they should speak to if there

are those allegations of elder abuse.

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Now, if you go onto Google and you

search Elder abuse or how to report it.

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There are a number of entities that

you could speak to, but it really

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depends on the personal circumstances

and the allegations that are made.

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If it is an emergency,

we have triple zero.

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If it's a criminal offense, we've

got the New South Wales police and

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they have an age crime prevention

department where they have officers

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that deal with those sorts of things.

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There's the national government telephone

line, which is 1 800 ELDER HELP.

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There's the Aging and Disability

Abuse Helpline, Senior Rights

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Services and Relationships Australia.

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You also then have the ability to speak

to a lawyer and a financial, and or a

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financial advisor, , if it's the case

that there are some legal elements.

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And I'm happy to share those phone

numbers and resources, , at the end.

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Coral: Brilliant.

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I was actually just going to say,

there's some great links there that

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I'd love to put in the show notes.

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So we'll do that, Marianne.

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Nick, is elder abuse something that

you come across in your practice?

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A

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Nick: Yeah, I mean, it's an interesting

point that Mary Anne makes about

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how it's not actually very easy to

define and it can take on so many

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different sort of versions of abuse.

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So look, unfortunately, we do

see it more than we would like.

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obviously, I specialize in elder

advice, so I'm probably someone

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that's going to see it more than other

advisors, but it was interesting.

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I was talking to another advisor

yesterday who works with a much younger

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demographic, and he was talking me

through a situation that he experienced

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recently where elder abuse was occurring.

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So it's not just, in the firms

where they focus on elder people

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who are most likely to be abused.

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It's actually across the full spectrum

of all advice firms is what we're seeing.

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Coral: bit unsettling, isn't it?

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Nick: Yeah, it is.

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Yeah, absolutely.

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Coral: Nick, could you please give

us an idea of, perhaps what this

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might look like for you when you

first become aware of the situation?

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And what would you advise someone who

raised concerns about financial abuse?

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Nick: Well, look, I always say this and

I'm sure Marianne will probably agree

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as well that the red flags are always

there from the start to a large degree.

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It comes down to sort of

experience and identifying those.

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So the thread flags as

quickly as possible.

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But what I would say some of the

early signs in the early interactions

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would be maybe over influence

in a meeting of an adult child.

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So you might have a situation where I

have an adult child and an elder and,

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a little bit of forced decision making

seems to be pushed upon the older person.

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The adult child might be saying

with things along the line of,

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mom wants this or dad wants that.

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Then you've kind of got mum or dad sort

of sitting in the corner nodding, but you

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could see that it's not a collaborative

interaction you're having here.

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So I mean, I call it that

sort of pushy nature.

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I mean, older people need

the support of their kids.

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It's invaluable in 99 percent of cases.

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But when it's going down this path

you could see that it's just not

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collaborative and it's a little bit pushy.

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And, , how do you address it?

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Well, , it's a really delicate

balance because an advisor you

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know, you act as an, independent

objective voice for your client.

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, that's who you should be.

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Now, if you push too hard to say, your

adult son, you are being elder abused,

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you need to do something about this.

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Sometimes you can't forget.

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That this is their son or their

daughter, so there is a decades long

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relationship that's been built up huge

amounts of trust more than likely.

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So me is, someone just essentially knew

on the scene as an advisor jeopardizing

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that relationship and saying, that person

doesn't have your best interests at heart.

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Sometimes the barriers can then come up.

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If you go too hard at it, and you

could be perceived as as the bad guy,

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essentially trying to slow things down

for the older person, and you also

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need to be conscious that there will

be discussions in the background as

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well with the rest of the family or

their other sort of close network.

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And if you push too hard.

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And the adult child could then

potentially use you almost as leverage

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to continue their agenda to say, we

met Nick today, he's trying to shove

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these ideas down your throat, he's

telling me that I'm bad, etc, etc.

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And that can play right into the hands

of someone who is consciously abusing

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the elder, because it removes me from

the equation and therefore removes,

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I guess, a blockage to potentially

, continue what they're trying to do.

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Coral: Goodness me.

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It really is a fine line, isn't it?

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And, like you said, drawing on that

experience, , in the work that we do, I'm

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always cognizant of, of the adult children

who are very supportive , and it's kind

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of like what you said, it's a fine line

where those adult children are, Speaking

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up and advocating for mom and dad, and

then maybe speaking up too assertively

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or speaking over the top of mom and dad.

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Nick: yeah, yeah,

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Coral: I'm really glad you raised that

point because, perhaps, if someone

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didn't have that kind of experience, that

just would not be observed or detected.

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Yeah.

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Nick: right.

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And I think , another strategy is to

really frame financial outcomes as well.

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So aside from the relationship dynamic

we had this example a couple of months

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ago with a client and I said, look,

the way this is going, I'm never

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going to, you can spend your money

however you want, my job is just to

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help you make informed decisions.

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If you continue on this path, you will

run out of money in X number of years

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and be relying on the

Centrelink age pension.

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Now, that might seem like a little bit of

a scare tactic, and it's absolutely not.

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It's really just the truth to just

say, look, there's more at stake here.

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This is your financial future.

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We were saying before that sometimes

you don't know you're caught

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up in it until it's too late.

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And when people start to think in

that, in terms of, I need to be

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considerate of myself as well it

starts to sort of maybe change their

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mindset a little bit to be a bit more

conscious of what might be happening.

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Coral: Marianne, you sent me some

interesting statistics prior to

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us recording this episode today.

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What was startling about these stats is

that based on the available evidence,

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most cases of elder abuse occur within

families and across generations.

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That perpetrators are more likely to

be the child of the victim, followed

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by a friend and then a spouse.

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Can you comment on that please?

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MaryAnn: That's correct.

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I just wanted to go back to Nick's point,

which I found really interesting about

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what are the red flags of things to

look at first, and then we can dive in.

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It

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ties quite nicely with those

statistics from a legal perspective.

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We're often looking for will who is

coming to that appointment and who

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is making that initial appointment.

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So a red flag straight away is.

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If the son or daughter or a new

acquaintance or friend has rung to

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make that appointment or is asking

for a copy of the power of attorney.

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And again, same with Nick.

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I think the problem is that only comes

with experience and knowledge around it.

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So for me, with the students in

succession, one of the activities that

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we do is how do we actually assess

capacity and we role play we role play.

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What does capacity look like for others?

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And we also look at, well, if

someone does ring, what does

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coercion or influence look like?

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And I think that's really important,

especially from the legal standpoint

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for the next generation of lawyers to

make sure they actually understand from

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a functional perspective, how would you

actually look for someone, for those red

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flags and then know what to do about it.

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So for me, things to look out for

really are, is the individual isolated?

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Do they have poor physical health?

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Is there an impairment,

a cognitive impairment?

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What's their income status?

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Do they have a diagnosed mental illness?

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Is there substance abuse and dependency?

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Those are the sorts of things

that straight away would cause a

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red flag for me and my practice.

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If we look at the statistics and I

quite enjoyed looking that up to provide

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to you, to have a general overview of

what the , statistics have been since

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2021 to now, to 2024 there have been a

number of statistics older persons and

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capacity issues around powers of attorney.

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And what was really interesting, is the

fact that at least 15 percent of people

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aged over 65 have experienced some sort

of elder abuse in the last 12 months.

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What was more interesting was.

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Most of those that had reported had

reported multiple types of abuse,

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whether that be financial or physical.

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So there was 24 percent that had reported.

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And I think just stopping there

this is only based on reportings.

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I'm sure there are thousands

and thousands of other cases

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that are not reported each year.

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So we just have to bear that in mind in

terms of accuracy of those statistics.

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The reporting and the surveys do show

that the perpetrators are more than likely

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to be a child, so a son or daughter,

followed by a friend or what we call a

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new acquaintance, someone that's come out

of nowhere that befriends the individual,

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the protected person and the family.

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And then the partner and the spouse.

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So, the AIFS, so the Australian

Institute of Family Studies found

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that 18 percent reported a perpetrator

to be a son or a daughter, and

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that was the highest percentage of

individuals that they had surveyed.

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Second in line was the

friend or the acquaintance.

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What was, interesting to note as well from

those studies was looking at, well, who

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does the protected person or the older

person appoint as their power of attorney?

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And a whopping 70 percent

was sons and daughters over

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friends, family, and neighbors.

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So we can kind of see how there's that

extra element of financial exploitation

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or the potential for that when we

have so many that have their sons and

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daughters that may not understand the

ramifications of having that position.

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Coral: Absolutely.

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The other interesting point , in those,

statistics and all that information

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you sent to me was that, people who

have a will and an enduring power of

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attorney reported a lower level of abuse.

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So just to be clear for our listeners,

people can appoint a power of attorney.

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or an enduring power of attorney.

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and I know that terminology changes

across the states across the country.

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I see confusion around these

two terms all the time.

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So could you just briefly explain what

is the difference between the power of

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attorney and then the enduring power of

attorney or enduring, I think guardian

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it's called in some of the states.

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MaryAnn: So just bearing in mind state

legislation and the terminology may

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vary, but for New South Wales, we have

a general power of attorney, and that

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often is used, , for transactional

things for a short period of time.

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If you then lost capacity,

it would be invalid.

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We have the enduring power of attorney,

which is the intention that it will

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continue once you lose that capacity.

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So it's a much longer

transactional document.

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And then we have an enduring guardian,

which is making medical decisions.

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So completely separate

to the power of attorney.

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We also in New South Wales have what's

called an advanced healthcare directive.

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That's a common form where the GP,

the solicitor and the individual

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would all work on together.

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, and that ties in nicely with the

guardianship as it provides a bit

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more specification around what sort

of treatment that you're happy with.

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So from a New South Wales perspective,

, they're the three main documents that we

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would normally say apart from your will.

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Coral: If someone came to you and, they

were looking to appoint, a power of

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attorney or an enduring power of attorney,

what would be the considerations that

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you might advise the older person

choosing, , which one of those would

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be most appropriate for the Marianne?

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MaryAnn: It really just depends on the

individual circumstance you might have.

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So sometimes as a solicitor, we get

appointed power of attorney and it

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might be a general power of attorney.

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If they need assistance at an auction

or to sell property, sometimes

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conveyancing is a good example of when

a general power of attorney may be used.

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The enduring power of

attorney is more, , where the.

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Mom and dad scenario come in and say,

look, we want to get our affairs in order.

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We're getting older.

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The kids have now hit adulthood

and we'd like to make sure that the

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kids, , can help manage our finances

should something happen to us.

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Coral: Thank you.

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So just circling back, to the, information

and the stats that you provided

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me, , if someone has, , completed their

will, and enduring power of attorney,

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why do you think, that the rate of

elder abuse is reportedly lower?

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MaryAnn: So we've got to be careful as

well, in terms of going back to that,

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harping on that point about reporting.

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The statistics that have come

out are only based on surveys and

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reports and allegations of abuse.

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So we can only go on the

numbers that have been provided.

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But the statistics do show that if

you have a will in place there's

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a much lower level of abuse.

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They said about 14% compared to 20

percent that didn't have a will.

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And for a power of attorney it was

lowered again in respect of the

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risk of elder abuse by about 13%.

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So I really think the rate is lower

for those both of the will and

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power of attorney because the older

person or what we call the protected

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person has taken that active step

to get their affairs in order.

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And they've had those difficult

discussions early on with

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their spouse, family, the kids.

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And I think making sure those instructions

and what they want to happen is

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clearly documented very early on.

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I think this helps to prevent that

grayness or that ambiguity, because

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often in the cases that we deal with,

when it comes to the lawyer and we

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need to take action, often one of the

main components from the perpetrator

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or the power of attorney is that they

didn't understand what their role was.

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They weren't aware that they weren't

supposed to inter metal funds.

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They weren't aware of what the protected

person's wishes or instructions were.

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So I think having those difficult

discussions early is reflective of

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those statistics where we've got those

documents in place and we know what it

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is that mum and dad want, and we know

our parameters and our responsibilities.

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Coral: 100%.

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I think, that's the key point.

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I Wonder if you're able to

share with us, is there a case?

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or two, where elder abuse was

recognized and acted upon and how this

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proceeded from a legal perspective.

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MaryAnn: Sure.

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So we had one recently where it was a

a niece of an uncle, and we had to make

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an application to the MCAT guardianship

division for a financial management order.

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In this particular case, the uncle

was the protected person, and

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he had been sexually assaulted.

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Subjected to allegations of financial

abuse by an acquaintance or a friend.

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The friend popped up out of

nowhere befriended the uncle.

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And then we saw a quick succession

of changes of the will, the power of

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attorney, the guardianship, which then

resulted in large cash withdrawals

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being taken out and unexplained as

well as, , the transfer of the title.

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For a nominal amount to

this particular person.

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It required us to go to NCAT to,

raise those allegations with them.

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Provide the bank statements and

other things to have that power

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of attorney revoked so that that

acquaintance was not able to access

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further funds or do anything else.

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There are still some ancillary issues

with that particular case that I

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thought of, which may require an

application to the Supreme Court.

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So it really just depends on the type of

circumstances that you're presented with.

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And that one in particular is

very much a work in progress.

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And like I had mentioned earlier, in

terms of the statistics that are lower

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for those that have a power of attorney,

in this particular case, the perpetrator

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did say In open court that they weren't

aware of their responsibilities and

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they didn't understand that they were

not supposed to intermeddle or benefit

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or get an income from that position.

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So I think that's really

important to make that link.

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I had one yesterday, we were in NCAT

in the guardianship division for

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a power of attorney that was not

properly drafted and was not signed.

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Now that was quite unfortunate.

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It was a daughter making the

application for her father.

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They were having difficulties

in getting him into aged care.

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Selling property, accessing bank

accounts and things like that.

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So we were able to successfully get

that order for her so she could help

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her dad with those next steps in life.

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Coral: it can happen

quite easily, can't it?

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:

And then undoing, , with, , the uncle

there , that had the new acquaintance,

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:

what that then meant for the niece

having to unravel that, mess it's

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kind of a little bit scary, really.

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MaryAnn: Yes.

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Coral: Nick, just a little bit of a,

deviation for a minute, but I'm curious

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to hear your perspective on this.

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There's been a lot of attention

in the media recently about the

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:

intergenerational wealth transfer

over the next decade or two.

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being an eye watering amount

, of money, , $5 trillion.

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Do you think that this is

going to exacerbate financial

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:

abuse of older people?

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:

What are your thoughts on that?

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Nick: Yeah.

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:

Look, , I think it's definitely a

factor because at the end of the day,

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this is a, transfer of wealth that

will probably never be repeated again.

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:

So we're in a, we're in a very unique

situation and it's not exactly a

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precedent for it, but will it be a factor?

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:

Absolutely.

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:

Naturally, the larger the amounts

that are at stake, the increased

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:

focus and therefore probably

the likelihood of, elder abuse.

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:

Increasingly, there's

a high chance of that.

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:

And look, it may also be coinciding

with what I, as a personal opinion

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that I just feel from a society

point of view, there's a little bit

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:

of a larger element of entitlement.

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:

Now inheritance have gone from something

that , if I get it, okay, it happens.

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But if it doesn't, it doesn't from um,

A reliance and therefore a reliance into

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:

an expectation that this is my money.

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Even though mum or dad might still

be alive and their intention is to

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:

transfer that to their adult children.

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I'm not sure why it's happening.

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:

I think it's a combination.

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:

I would also think that right now,

so if you talk about post COVID

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:

the cost of living crisis and

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:

interest rate increases have also been

a huge factor because people all of a

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:

sudden, are requiring much, much more.

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:

More money to help service their

mortgages and pay for their lifestyle

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:

and pay for private education all those

types of expenses And there just wasn't

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:

this expectation that this was going to

happen so all of the sudden The decision

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:

making that an adult child might have

made over, overbuying on a property.

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:

Their decision making can sometimes

alter their perception of someone

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:

that would never consider elder

abusing a parent going from that to

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:

a point where, well, if I don't get

this money, I'm in a lot of trouble.

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:

And when that happens, all of a sudden,

the emotional barriers that would

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:

prevent you from doing something like

that are overrun by the need to get

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:

this money to keep your life going.

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:

And that's where you can sort of

strike a really dangerous territory

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:

where someone who may have always had

mum or dad's best interest at heart,

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:

but now it's come to a crunch point

where they need money from somewhere.

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:

This is where it's got to come from

and I'll do anything to get it.

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:

And that's,

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:

where we sort of find

ourselves a little bit now.

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:

And I think there's a few

factors because of that.

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:

I mean, you look at, I think

just as a sole factor, the

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:

cost of buying a property.

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:

Yeah.

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:

If this is the only way to get that done,

and that's very, very important, and the

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:

adult child may not have done that or been

able to, and this is the avenue to achieve

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:

that, again, they might put some of those

emotional considerations to the side.

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:

And that's where you could see,

that's where I have seen personally,

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:

those specific situations where

one decision has a foreign effect

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:

to how someone behaves later.

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:

Coral: Marianne and Nick, we've

covered a lot of ground on this

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:

topic of elder abuse today.

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:

Before we wrap up this episode, is

there anything else you'd like to

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:

tell our listeners about at this time?

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:

Nick: Look, nothing too much more to add.

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:

, I just think for older Australians,

having support around them,

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:

they absolutely need it.

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:

But I just think, uh, Marianne

probably agree with this, that

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:

independent objective voice

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:

is so critical.

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:

Just to have someone to lean on, whether

it's a financial consideration or a legal

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:

consideration or a combination of both.

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:

And often we find that the combination of.

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:

Me leaning on a lawyer and a lawyer

leaning on me means that if you've

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:

got two people that have seen it

all before, you're going to have two

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:

really strong perspectives on it.

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:

So having the right team around our older

Australians is really important, I think.

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Coral: Brilliant.

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:

Great advice, Nick.

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:

Well, that concludes today's

episode on elder abuse.

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:

Thank you both for sharing your

knowledge and expertise with us today.

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It's been a really thought

provoking discussion.

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:

Listeners, Mary Anne and Nick's contact

details are included in the show notes.

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:

So if you want to follow up

with either of them, you can.

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:

And, , we'll have all those

links that Marianne, mentioned

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:

earlier in the show notes.

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:

If you're enjoying the podcast

series or today's episode, we'd also

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:

love for you to subscribe or leave

a review, and we look forward to

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:

chatting with you again next week.

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