07/08/2022
I'm sure there's a special place in hell for people who rip off their elderly relatives. But that provides little comfort for the older person who has lost everything — their home, their life savings, their dignity — in the here and now.
The law recognises that in some relationships, one party naturally occupies a position of influence over the other. Those relationships include solicitor>client, doctor>patient, parent>child. If, for example, a parent takes a substantial gift from their child, the law presumes that the gift was a result of the influence of the parent and the gift will be set aside unless the parent can prove the gift was a result of the child’s independent free will. This is known as the ‘presumption of undue influence’.
The presumption, however, does not operate in reverse. Thus a victim of financial elder abuse at the hands of their child often faces an uphill battle to recover their home or money.
Having acted for an elderly client recently in an egregious case of , I am firmly of the view that the law in this area is desperately in need of reform. Either the courts need to formally recognise the influence of an adult child over an elderly parent, or parliament needs to step in to codify the presumption of undue influence. Until this happens, I fear that the ‘significant, insidious’ wave of financial elder abuse will continue to rise.
Four years ago, Kim agreed to transfer her home to her son. Then she found herself penniless with nowhere to go. Lawyers say it's a "classic case" of financial elder abuse and the issue is increasing.
