Elder Abuse and the Role of the Solicitor

Dementia is the leading cause of death for Australians, according to Dementia Australia [1]. Not cancer. Not stroke. Not road traffic accidents. Dementia.

It is estimated that two out of three people with dementia in Australia live in the community and 54% of people in aged care have dementia [2].

Given the prevalence of dementia in our society, we are seeing a rise in elder abuse in our community.

So, what is elder abuse

Elder abuse is any act or failure to act which can result in harm to an older person, where there is a relationship of trust.

What constitutes abuse?

There are different forms of abuse. The most common type of elder abuse is psychological, followed by financial. However, abuse can also be physical, sexual, and emotional.

For example, elder abuse may be a child isolating his or her parent from other children. It could also be a child transferring money from the elderly parent’s bank account into his or her own account. Another example would be a spouse slapping his or her elderly partner.

In all these examples, the key is that there is a relationship of trust and the abuse results in harm or stress for the elderly person.

What can solicitors do to prevent elder abuse

Solicitors play an important role with elderly clients. We are one of the few professionals, alongside doctors and financial advisers, who may be able to assist elderly persons.

Who is the Client

When taking instructions, solicitors need to carefully identify the client. Why? This is so we can ensure that we are actually receiving instructions from our client and our client is receiving our advice.

Beware of others giving instructions

If other family members attempt to give instructions on behalf of an elderly client, beware. In some cases, this could give rise to suspicious circumstances. For instance, if an elderly client meets with an estate planning solicitor in the presence of a spouse and that spouse gives instructions to cut out the elderly client’s children from a first marriage, alarm bells should be ringing.

In this instance, it would be prudent for the estate planning solicitor to meet with the elderly client alone. Not only that, but the solicitor should also obtain a copy of the elderly client’s prior will/s and conduct enquiry as to the reasons why the elderly client wishes to cut out the children from his or her first marriage. There may be good reason for this, however, the solicitor needs to conduct an investigation, ask open-ended questions, and keep adequate file notes. These records may become important in the future, after the elderly client’s death, if a will validity claim or family provision claim is commenced by the children of the first marriage.

Capacity Assessments

Solicitors also need to conduct capacity assessments to ensure that their clients have the requisite capacity to give instructions. Capacity is based on the particular task at hand. For example, a client may have capacity to make a simple will, but they may not have capacity to make a lengthy will with testamentary trusts or a power of attorney.

Education

Educating the community about estate planning documents is important. These documents include wills, powers of attorney, and appointments of enduring guardians. People have often heard about wills, but they may not know anything about enduring documents.

By educating our clients, they will be better informed to make decisions about their estate planning affairs.

NSW Ageing and Disability Helpline

If you do suspect there is elder abuse, contact the NSW Ageing and Disability Abuse Helpline that you can ring on 1800 628 221. Alternatively, you can submit an anonymous report online.

Given the rise in elder abuse and the ageing population, it is important for us to be vigilant more than ever. If you suspect one of your loved ones is the subject of elder abuse, or you have concerns about their capacity, please call our experienced team of lawyers on (02) 9101 7000.

By Maree Harris – Special Counsel

Brisbane – (07) 3221 9744

Sydney – (02) 9101 7000

Melbourne – (03) 9975 7321

How de Groots can help you?

de Groots wills and estate lawyers, which was established in 1986, specialises in wills and estate planning along with estate administration and estate litigation.

Our wills and estate team are committed to providing personal, confidential and professional advice tailored to your situation. The estate planning team assists clients in relation to estate planning ranging from simple to complex matters.

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[1] Dementia Australia, “Dementia Facts and Figures”, Dementia & Alzheimer’s Australia, Dementia facts and figures | Dementia Australia (2 March 2026).

[2] Livingston G, Huntley J, Sommerlad A, et al. (2024) ‘Dementia prevention, intervention, and care: 2024 report of the Lancet Commission’, The Lancet, 404(10452):572-628.