What is Elder Abuse?
Elder abuse is defined by the World Health Organisation as “A single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.”
This can take the form of criminal, physical, or emotional harm or unethical advantage taking, and can be constituted by either taking an action or failing to act where action is required.
What is Financial Elder Abuse?
Although elder abuse can take many forms (psychological, physical, sexual, financial, etc.), most relevant to the topic of wills and probate is financial elder abuse. Financial elder abuse is the illegal use of an older person’s property or finance and can include the misuse of a power of attorney, coercing an individual to change their will, taking control of their finances against their wishes, and denying them access to their money/pension.
Financial Elder Abuse and Capacity.
A common scenario where financial elder abuse occurs is where an older person enters into a transaction or agreement that they do not have the capacity to enter.
Whilst capacity issues may be legal, physical or mental, perhaps the most commonly encountered in the area of elder abuse is mental capacity.
Defined broadly, mental capacity is the ability to make one’s own decisions. It is decision specific, it fluctuates over time and in any given transaction it is presumed unless otherwise proved.
Testamentary Capacity (the capacity to make a will)
A person has testamentary capacity where:
They understand that they are setting out who is to receive their property following their passing, and that they can change and revoke their will at any time whilst they still have capacity;
They understand the extent and form of the assets they are giving away (in at least a general sense);
They understand the claims they ought to give effect to; and
They are not suffering any disorder of the mind or delusion that influences their will in disposing of their property and brings about a disposal which if their mind had been sound would not have been made.
If a person makes a will other than in accordance with these four conditions, their will can be deemed invalid and set aside.
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