Protecting Our Elders: Understanding Elder Abuse and Undue Influence
- Justeen Dormer
- Mar 14, 2022
- 3 min read
Updated: Jan 27
Will Disputes, Estates Disputes
Elder abuse in Australia is a growing problem that threatens the dignity, independence, and financial security of older Australians. Elder abuse can involve undue influence, unconscionable conduct, and unfair property transfers—often at the hands of a trusted adult child or caregiver.
At Dormer Stanhope, we are dedicated to providing you with essential legal protections against elder abuse. This guide explains what elder abuse looks like, explores legal remedies for undue influence and unconscionable conduct in property transfers, and helps you safeguard your rights or those of a loved one.
What is Elder Abuse? Understanding Types and Legal Protections
Elder abuse is any act that harms an older person for another's benefit. Often, elder abuse is carried out by someone in a position of trust, such as a family member, friend, or caregiver. Recognising the signs of elder abuse, particularly regarding property transfers, is crucial for legal protection.
Types of elder abuse
Financial abuse: Manipulation of property, money, or assets, including unfair or forced property transfers.
Physical abuse: Inflicting physical harm on an elderly person.
Emotional or psychological abuse: Intimidation, threats, and mistreatment that affect mental well-being.
Social abuse: Isolating seniors from family, friends, or support networks.
Sexual abuse: Any unwanted sexual activity or behaviour.
Case law shows that financial abuse frequently involves undue influence or unconscionable conduct to force or manipulate property transfers.
Legal Protections: Case Study of Undue Influence and Unconscionable Conduct
Case Study: McFarlane v McFarlane [2021] and its Implications for Elder Abuse Law
The following elder abuse case highlights how Australian courts can reverse unfair property transfers caused by undue influence and unconscionable conduct:
The Background
Judith McFarlane (77) transferred her home to her son Mark without receiving anything in return except "natural love and affection."
Mark lived with Mrs McFarlane as her main caregiver.
Only Mark consulted with lawyers; Mrs McFarlane received no independent legal advice.
The transfer severely impacted her finances, reducing her pension and increasing aged care costs by over $128,000.
The Court Proceedings: Addressing Undue Influence and Unconscionable Conduct
State Trustees took action to reverse the property transfer, alleging undue influence and unconscionable conduct.
Mark claimed the property was a gift for his support, but provided no evidence.
Mrs McFarlane testified she feared Mark and signed the deed under duress, worried he might become violent.
The Victorian Supreme Court found in favour of Mrs McFarlane, identifying both undue influence and unconscionable conduct in the property transfer.
What Constitutes Undue Influence?
Undue influence occurs when someone in a position of power or trust uses that influence to secure property transfers or other benefits. In these cases, the person in power must prove the transaction was a free, well-understood choice by the elder.
The court identified undue influence because:
Mrs McFarlane was dependent on Mark for care and transport.
She had a serious mental illness and Mark failed to help her seek treatment.
She feared his angry and abusive behaviour.
She felt obligated to please him and had difficulty refusing his requests.
She did not receive independent legal advice or understand the financial consequences for her property or Will.
What is Unconscionable Conduct?
Unconscionable conduct involves taking advantage of another person’s special disadvantage—such as physical, mental, or emotional vulnerability—for personal gain.
The court found Mark exploited his mother's vulnerabilities to arrange the property transfer without ensuring she received independent legal advice. He could not prove the transfer was fair or reasonable.
As a result, the court voided the property transfer due to both undue influence and unconscionable conduct, and awarded Mrs McFarlane compensation for her losses.
Key Legal Lessons About Elder Abuse, Property Transfers, and Family Protections
This landmark case offers important legal protections and guidance to families considering property transfers with elderly relatives:
Seek Independent Legal Advice: Every party to a property transfer should secure independent legal and financial advice. This ensures that all parties fully understand their rights, risks, and the lasting impact of the transfer.
Assess Decision-Making Capacity: If there are concerns about a person's ability to understand a transaction, a medical assessment should be obtained before proceeding to ensure valid consent.
Legal Support for Elder Abuse, Property Transfers, and Asset Protection
If you or a loved one are at risk of elder abuse, or if you need legal guidance for safe asset and property transfers, Dormer Stanhope’s experienced Wills & Estates team is here for you. We can help you identify and prevent undue influence, unconscionable conduct, and financial abuse. Our team provides affordable, clear legal solutions to ensure your family’s rights and assets are protected.
If you or someone you love is affected by elder or financial abuse, or you require advice regarding the transfer of assets between family members, please contact a member of our experienced Wills & Estates team to see if we can assist you.
