Financial Elder Abuse: A Serious Issue Affecting Older Australians

As a guardianship lawyer, I've seen first-hand the devastating effects of financial elder abuse on Australian seniors.

If you are a financial advisor, read this blog for signs that financial elder abuse may be happening to your clients, and what role you can play in protecting your clients.

Financial elder abuse is a serious issue that affects many older Australians every year. Elder abuse can take many forms, including financial exploitation, physical abuse, and emotional abuse.

As financial advisors, you are often in a prime (and sometimes ‘only’) position to be aware of the signs of elder abuse and to take action when you suspect that a client may be at risk.

The following are 5 signs that financial elder abuse may be happening:

• Sudden changes in financial arrangements, such as the appointment of a new power of attorney or the transfer of assets to a new account.

• Unexplained withdrawals from accounts or the use of an elderly person's funds without their knowledge or consent.

• The appearance of new "friends" who are taking an interest in the elderly person's financial affairs, especially if they seem to be trying to isolate the person from their family and trusted advisors.

• Changes in the elderly person's demeanour or behaviour, such as increased confusion or agitation, that may be caused by financial stress or exploitation.

• Unexpected changes in the elderly person's financial situation, such as sudden debts or unpaid bills.

To help protect your clients from elder abuse, there are several steps you can take:

1. Stay in regular contact with your clients. This will help you to stay informed about their financial situation and to identify any changes that may be cause for concern.

2. Be aware of the signs of elder abuse. If you notice any unusual activity in your client's accounts or if you have concerns about the well-being of an elderly client, it's important to take action.

3. Work with other professionals. If you have concerns about a client, consider reaching out to other professionals, such as lawyers or social workers, for guidance on how to proceed.

4. Educate your clients about the dangers of elder abuse. Help your clients to develop strategies for protecting themselves, such as setting up a power of attorney (if they have capacity) or working with a trusted family member or friend.

By taking these steps, financial advisors can play a critical role in protecting their elderly clients from financial elder abuse. If you have any questions or would like to discuss how I can assist, please don't hesitate to contact me.

Successful Review of Guardianship and Administration Decision in Western Australia

We recently acted for the applicants in a review of a decision made under the Guardianship and Administration Act 1990 (WA). You can read the full decision here.

The applicants, MD and DM, applied for a review of a decision made by a single member of the Tribunal, Member Conley, on 6 September 2022.

In the original decision, Member Conley declared that the represented person (NA) was unable to make reasonable judgments in respect of matters relating to her estate, person, and health and safety, and therefore needed an administrator of her estate and a guardian. The Tribunal then made orders revoking the enduring powers of attorney and guardianship in place and appointed the Public Trustee as plenary administrator and the Public Advocate as limited guardian.

On our clients behalf, we then applied for a review by the Full Tribunal.

After reviewing the case, the Full Tribunal decided to revoke the original orders and reinstate the enduring power of guardianship and power of attorney in favour of MD and DM.

In relation to guardianship, the Full Tribunal found that NA was unable to make decisions regarding her own health and safety and needed oversight, care, and control. However, the Full Tribunal also found that a less restrictive means was available in the form of an enduring power of guardianship (EPG) previously made by the individual. As a result, the Full Tribunal revoked the orders appointing a limited guardian and reinstated the EPG, naming two of the individual's daughters as joint guardians.

In relation to administration, the Full Tribunal found that NA’s vascular dementia rendered her unable to make reasonable judgments in relation to matters concerning her estate, but that the appointment of an administrator was not necessary as the less restrictive option of the enduring power of attorney in favour of MD and DM was available.

We are proud to have been able to assist MD and DM. A job well-done by Isaac Priddis, who appeared for our clients at the hearing.

If you would like to hire a lawyer to act on your behalf in a guardianship matter, please don't hesitate to contact me. I would be happy to discuss your options and how I can assist you.

I acted in 30 separate such matters in 2022 alone and offer a specialist service.

The "Serious Harm Test" for Defamation in (Western) Australia

As a defamation lawyer in Western Australia, I am often asked about the requirements for bringing a defamation claim.

While the WA State Government has agreed with the Federal Government and other States and Territories to introduce the "serious harm test" by amending the Defamation Act 2005 (WA) at some stage, we do not yet know when this will be legislated.

Currently, the triviality defense continues to apply to all publications in Western Australia.

The serious harm test is already in effect in other jurisdictions in Australia, including New South Wales. This arose from a two-stage review of the Model Defamation Provisions.

The serious harm test replaced the triviality defence for publications in NSW made on or after July 1, 2021. For publications before that date, the triviality defence still applies and there is no requirement to show serious harm.

Under the serious harm test, plaintiffs in defamation cases must prove on the balance of probabilities that the relevant publication "has caused, or is likely to cause, serious harm" to their reputation.

The determination of serious harm may consider evidence such as the scale of the publication and its readership, as well as testimony from the plaintiff and other witnesses.

One notable case that addressed the serious harm test in Australia is Newman v Whittington [2022] NSWSC 249.

In this case, the court confirmed that plaintiffs must prove on the balance of probabilities that the relevant publication "has caused, or is likely to cause, serious harm" to their reputation, abolishing the common law rule that damage was to be presumed and not proved.

The court noted that the "obvious genesis" of the serious harm element came from the equivalent provision in the United Kingdom's Defamation Act 2013, with there being "no material difference" between the two.

In Newman v Whittington, the pleadings asserted that serious harm was to be inferred from the "inherent seriousness of the defamatory imputations" and from the plaintiff's reputation as a family mediator.

The court struck out the pleadings as they did not clearly articulate an arguable case, and therefore there was no evidential assessment of whether serious harm had been established.

However, the court granted leave for the plaintiff to replead her claims of serious harm given the "novelty of the point."

In order to show that serious harm has been established in a defamation case, it is important to collate as much relevant evidence as possible.

This may include evidence of the scale of the publication and its readership, testimony from the plaintiff and other witnesses about the impact of the publication on their reputation, and any other relevant evidence that demonstrates the harm caused by the defamation.

By thoroughly preparing and presenting this evidence, plaintiffs can help to strengthen their case and increase the chances of success in a defamation claim.

As a defamation lawyer, when the test applies, it will be my job to help my clients gather and present the necessary evidence to prove serious harm and seek justice when their reputations have been wrongly damaged.

This is an example of the type of evidence that will need to be collated to show serious harm:

…

Sarah is a successful business owner who has built a reputation for herself as a trustworthy and reliable source of products and services in her industry.

However, one day she discovers that a former employee has posted a series of false and defamatory statements about her on a popular social media platform.

These statements claim that Sarah is dishonest and untrustworthy, and they are accompanied by a series of misleading photos and videos that are meant to further damage her reputation.

Sarah is devastated by these false claims and knows that they could seriously harm her business if left unchecked. She immediately seeks the help of a defamation lawyer to help her take legal action against her former employee.

To prove serious harm in her defamation case, Sarah and her lawyer gather a range of evidence to demonstrate the impact of the defamatory statements on her reputation.

This evidence includes:

• Testimony from Sarah and other witnesses about the impact of the defamatory statements on her reputation, including any negative feedback or comments she has received from customers or business partners.

• Evidence of the scale of the publication, such as the number of views, shares, and comments on the social media posts.

• Screenshots of the defamatory statements and accompanying photos and videos, as well as any other relevant evidence demonstrating the harm caused by the defamation.

• Documentation of any financial losses or other damages suffered as a result of the defamation, such as a decline in sales or loss of business opportunities.

By presenting this evidence to the court, Sarah and her lawyer are able to make a strong case that the defamatory statements have caused, or are likely to cause, serious harm to her reputation.

With this evidence in hand, they are able to seek justice for the damage caused by the defamation and help to restore Sarah's reputation in the eyes of her customers and business partners.

The Importance of a Well-Crafted Apology in Defamation Cases

Apologising is not always easy, but it is a crucial part of maintaining healthy relationships and repairing damage caused by our actions.

As a defamation lawyer, I see firsthand the importance of a well-crafted apology. Written and signed apologies are usually a crucial element of an overall settlement of a defamation case.

According to a recent TED talk published on YouTube, good apologies generally share certain elements. Here are some key points to consider when apologising:

1. Accept responsibility for your actions. This is the "centrepiece" of an apology and involves acknowledging and understanding the impact of your actions on the other person.

2. Seek to understand the perspective of the wronged party. A good apology isn't about making you feel better, it's about trying to repair the damage to your relationship. This means it's important to put your own ego aside and try to see things from the other person's point of view.

3, Offer a sincere apology, even if your mistake was an accident. Accidents do happen, but it's important to recognize that they can still cause harm and offer a sincere apology.

4. Clearly acknowledge wrongdoing. This means admitting specifically how you messed up and showing that you understand the impact of your actions.

5. Make an offer of repair. This can be a tangible gesture, like replacing something you damaged, or a more symbolic gesture, like expressing love and respect for the person you wronged. It's important to follow through on your offer of repair and demonstrate through your actions that you are committed to changing your behavior in the future.

By considering these elements, you can craft a sincere and effective apology that helps repair damage and strengthen relationships. There are more tips on apologies in the TED talk, "The best way to apologize (according to science)" https://lnkd.in/gK6t5VQP

Advantages of Hiring a Specialist Lawyer

As my career progressed, I became a specialist in 3 fields:

1. defamation
2. guardianship in SAT, and
3. costs.

It was like gravity pulled me towards these 3 over 19 years as a lawyer, after also trying other things.

Hiring a specialist lawyer brings numerous benefits.

Here are a few:

Expertise: A specialist lawyer has in-depth knowledge and experience in a specific area of law. This means that they are better equipped to handle complex legal issues and provide accurate advice.

Efficiency: Because a specialist lawyer focuses on a specific area of law, they are likely to have a better understanding of the relevant laws and regulations, as well as the specific processes and procedures involved. This can lead to a more efficient resolution of your legal matter.

Cost-effectiveness: While it may seem counterintuitive, hiring a specialist lawyer can often be more cost-effective in the long run. Because they have a deeper understanding of the relevant laws and processes, they may be able to resolve your legal matter more quickly and efficiently, saving you time and money.

Personalized service: A specialist lawyer is likely to have a better understanding of your unique needs and concerns, and will be able to provide more tailored and personalized legal representation.

Overall, hiring a specialist lawyer can bring a level of expertise and efficiency to your legal matters that a generalist lawyer may not be able to provide. While it may cost more upfront to hire a specialist, the benefits can far outweigh the costs in the long run.

Guardianship Specialty: Protecting Loved Ones with Dementia

One of my 3 specialities is GUARDIANSHIP.

I often encounter clients who are seeking guardianship for loved ones suffering from dementia.

Dementia refers to a decline in cognitive function, which includes memory, language, problem-solving, and decision-making abilities. It can be caused by various conditions, such as Alzheimer's disease, stroke, or brain injury.

In the context of guardianship applications, the State Administrative Tribunal of Western Australia considers whether an individual has dementia when determining whether they are capable of making decisions about their own care and welfare.

If the Tribunal determines that an individual lacks capacity due to dementia, a guardian may be appointed to make decisions on their behalf.

Dementia is a progressive condition, meaning it will get worse over time. As such, it's important to plan for the future and ensure that appropriate guardianship arrangements are in place to ensure the best possible care for loved ones suffering from dementia.

If you or someone you know is seeking guardianship for a loved one suffering from dementia, don't hesitate to reach out. I've dealt with 100s of these matters over the years and offer a comprehensive service.

Junior Lawyer Position Available at Boutique Law Practice

Attention all junior lawyers! Our Law Practice is currently seeking to fill a junior lawyer role due to a high demand for our cost-effective and efficient legal services. As a boutique Law Practice with niche practice areas, including defamation, guardianship, and legal cost disputes, we are in need of talented lawyers to join our ever-growing team.

Our director, who has over 18 years of experience as a lawyer and 15 years as the principal of a law practice, is a specialist in defamation, guardianship, and legal costs. He is also an author and has high-tech knowledge and skills, making him keen to implement world-leading IT solutions to improve efficiency and productivity. At our Law Practice, we pride ourselves on thinking ahead of the curve and creating a better work-life balance than at traditional law firms.

We offer above market rate salaries and flexible work arrangements, including the option to work from home or on a hybrid basis. We are looking for candidates who are confident, capable, and have more than 2 years of PAE, as well as relevant experience and a willingness to embrace new technology. If you are skilled at drafting documents and legal analysis, we encourage you to apply. All applications will be kept in the strictest confidence.

Join our team and gain specialist experience in niche areas of law while enjoying the benefits of our cutting-edge technology and flexible work arrangements. Send us your resume today and let's have a discussion!

Protecting Individuals with Dementia from Financial Abuse

Dementia can have a significant impact on financial decision making, including:

- Struggling to understand financial concepts
- Difficulty remembering important financial information
- Inability to manage money effectively

These challenges can lead to financial abuse and exploitation, as well as financial instability for the individual and their family.

To protect individuals with dementia, the Guardianship and Administration Act 1990 (WA) offers administration orders. These orders appoint a guardian or administrator to manage the financial affairs of an individual with dementia and provide necessary support and oversight.

It is important to note that administration orders should be considered as a last resort, as they do limit an individual's autonomy and decision-making capacity. However, in cases where an individual with dementia is at risk of financial abuse or is unable to manage their own finances, an administration order can provide much-needed protection and support.

As a specialist in guardianship and administration in the State Administrative Tribunal of Western Australia, I have acted in 30 different cases related to this area of law in 2022 (and counting).

With an ageing population, families may become more aware of the financial exploitation risks associated with dementia during times like the Christmas season.

If you or a loved one are dealing with dementia and financial decision making, I am here to help. I offer a comprehensive service and deeply care about the needs of my clients when they apply for guardianship and administration orders over family members. Do not hesitate to reach out for assistance.

New Technology for Diagnosing Alzheimer's Disease

As a lawyer who works on guardianship applications in the State Administrative Tribunal of WA every day, I spend much of my time reading medical reports.

These are relied on by the Tribunal to whether the presumption of capacity is rebutted in an individual case.

Will be intriguing to see this new technology for diagnosing Alzheimer’s in action.

Hopefully it brings more certainty, when it comes to determining if (and crucially, when) there is a need for a guardianship order to be made after a family member begins displaying symptoms.

Click here to read the full article.

Increase in Guardianship Applications at the State Administrative Tribunal of Western Australia

As a lawyer who practices in guardianship at the State Administrative Tribunal of Western Australia (SAT), I see first-hand the important role guardianship plays in protecting the rights and interests of individuals who are unable to make decisions for themselves due to disability, illness, or injury.

According to data from the SAT's annual reports, the number of guardianship applications lodged with the SAT has significantly increased over the past 5 years.

Here's a breakdown of the number of guardianship applications received by the SAT each year:

Year | Number of Guardianship applications
2018 - 3,864
2019 - 3,938
2020 - 4,903
2021 - 5,061
2022 - 5,602

There has been an overall 45.97% increase in guardianship applications between 2018 and 2022.

If you or someone you know is in need of guardianship assistance, I highly recommend looking at the SAT's website for information and support. The SAT website has a wealth of resources to help navigate the process.

If you would like to hire a lawyer to act on your behalf in a guardianship matter, please don't hesitate to contact me. I would be happy to discuss your options and how I can assist you.

I acted in 30 separate such matters in 2022 alone and offer a specialist service.