by Morgan Collens

The Law Council of Australia has recently released it’s updated best practice guide for legal practitioners in relation to elder abuse. The guidelines provide an outline of what may constitute financial abuse, and how legal practitioners can assist in preventing instances of this behaviour.

In outlining what may be considered an act of financial abuse, the Australian Law Reform Commission has provided the following non-exhaustive list:

  1. Incurring bills for which an older person is responsible;
  2. Stealing money or goods;
  3. Abusing Power of Attorney arrangements;
  4. Refusing to repay a loan;
  5. Living with someone without helping to pay for expenses;
  6. Failing to care for someone after agreeing to do so in exchange for money or property; and
  7. Forcing someone to sign a Will, contract, or Power of Attorney document.

Examples 3 and 7 above are of particular concern to legal practitioners, who may face serious disciplinary action if it is found that they neglected to adequately check for undue influence or lack of capacity. As held in Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007, a solicitor should always consider capacity and the possibility of undue influence, even if only to dismiss any suspicion. With this requirement in mind, there are certain circumstances the Law Council of Australia suggests should raise immediate red flags for a legal practitioner, such as:

  1. The client appearing to lack an understanding about the legal work the practitioner is being asked to perform, or about the practitioner-client relationship;
  2. Questions regarding the client’s mental capacity, particularly any doubt as to their ability to understand and make decisions about the transaction when it is explained to them, noting, however, that mental incapacity alone does not necessarily indicate elder abuse;
  3. Any indications that another person may be exerting undue influence over the client in relation to changes made to a Will, particularly changes to beneficiaries or specific gifts left as part of the Will; or
  4. Any indications that the client has a special disadvantage, such as illness, poverty or need of any kind, or lack of education or understanding, that may be exploited by a person of influence in the client’s life.

While the implications of undue influence and unconscionable conduct are serious and wide ranging, there are a number of relatively simple steps that legal practitioners are encouraged to undertake to assist in preventing elder financial abuse. This may include visiting the client at their home to ensure they are in a familiar and comfortable location without any distraction, ensuring that they meet with the client alone and without another person within sight or earshot of the meeting, and making sure that a certified interpreter with no personal interest in the discussion is present to assist those with limited English capabilities.

If you are concerned about whether a Will or Power of Attorney has been created under conditions of undue influence, you can contact Nevile & Co. to discuss your options today at

Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.