According to the World Health Organisation, around 1 in 6 people over the age of 60 have experienced some form of abuse in community settings during the past year. Unfortunately, the rates of abuse increased during the COVID-19 pandemic, and may continue to increase with an aging population.

What is Elder Abuse?

Elder abuse is any act which causes harm to an older person and is carried out by someone they know and trust, usually a family member. The abuse may be physical, social, financial, psychological and can include mistreatment and neglect.

Financial Abuse

Financial abuse is the most common form of elder abuse. There are steps that can be taken to help prevent financial elder abuse from occurring including, but not limited to, the following:

Obtain independent advice about your financial matters
Maintain an up-to-date Will
Do not loan money to family members without formal and legally binding arrangements in place to recover the money if required. This is especially important if a relationship between family members breaks down, while money remains outstanding on the loan.

Powers of Attorney

One of the best forms of protection against the possibility of financial abuse occurring is for a person to have an Enduring Power of Attorney for financial matters. If, for whatever reason, a person does not want to entrust this responsibility to their family, they can choose to appoint a trusted friend or advisor as their Attorney for financial matters.

Appointing an Attorney

Appointing an attorney is an important decision, and there are a number of factors that ought to be considered when appointing someone to act on your behalf, especially considering that the appointment will continue in circumstances where you have lost the mental capacity to make decisions for yourself.

When appointing an attorney, you should only appoint someone who you have trust in, and who has an understanding of what your wishes are and will carry those wishes out for you. You should give thought as to whether you wish to place any limitations or conditions on the appointment. For example, you may wish to put restrictions on the types of decisions that your attorney might make, such as the authority to only deal with your bank accounts and not your real estate assets.

Without any sort of limitations or conditions provided in your Enduring Power of Attorney, your attorney will have the powers to make decision about, among other matters, the following:

Buying and selling property on your behalf
Paying your bills
Doing your banking
Communicating with legal professionals on your behalf to facilitate these transactions.

Enduring Power of Attorney

An Enduring Power of Attorney can provide elderly and vulnerable individuals with a sense of security and control over their affairs, and can certainly assist a person when the appointed attorney is a trustworthy individual; however there remains a potential for these powers to be misused.

In understanding the powers that are granted by an Enduring Power of Attorney, and the nature and effect of the appointment, you can look to minimise any potential risk involved in appointing an attorney, and feel secure in your appointment.

Writing a Will

As with the Enduring Power of Attorney, having an up to date, properly drafted Will can assist in ensuring that there is no undue influence placed upon you when making decisions on how you wish to deal with your estate.

Undue Influence

In the context of the drafting a Will, undue influence involves a person using their position of trust or their relationship with the Will maker to influence them to make decisions in their favour at the detriment of other family members or people in the Will maker's life. This will generally occur when the Will maker is in a vulnerable position - whether elderly or ill- and is dependant on others to assist in other areas of their life.

While a Will can be contested if there are allegations of undue influence, the burden of proof will fall on the person alleging that the Will maker was improperly influenced when making their Will.

By having your Will drafted by an independent professional, safeguards against potential beneficiaries influencing your decision making process can be put in place, to ensure that your thoughts and intentions in respect to the distribution of your assets are properly considered and carried out.

While it is not always possible, we would recommend having your estate plan in place before you become more dependant on family members for care and assistance.

You should review your Will regularly, especially after significant family events or deaths.

How Sharrock Pitman Legal can help?

If you would like to discuss any concerns you have regarding protecting your assets, or if you would like assistance with preparing your will or estate planning please do not hesitate to contact a member of our Wills & Estates Team by email willsandestates@sharrockpitman.com.au or call 1300 205 506. If you have concerns for your personal safety, you should contact the police.

Further information

More articles on Wills and Succession Planning written by our Wills and Estates Team can be found here.

‍

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.‍

Written by a member of our Legal Team

Sarah Slattery

For further information contact

Sarah Slattery

Sarah is an Associate Lawyer at Sharrock Pitman Legal. As a member of our Wills and Estates team, Sarah is dedicated to successfully resolving her clients matters in a cost-effective and timely manner. For further information, please contact Sarah directly on (03) 8651 3322.

Can I prevent a challenge against my Will?

According to the World Health Organisation, around 1 in 6 people over the age of 60 have experienced some form of abuse in community settings during the past year. Unfortunately, the rates of abuse increased during the COVID-19 pandemic, and may continue to increase with an aging population.

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

Free Property Law webinar -

Land Development and Joint Ventures

Elder Abuse - How to protect your assets

According to the World Health Organisation, around 1 in 6 people over the age of 60 have experienced some form of abuse in community settings during the past year. Unfortunately, the rates of abuse increased during the COVID-19 pandemic, and may continue to increase with an aging population.