As a solicitor specialising in financial abuse, the most difficult cases for me are those where I’m told about abuse relating to an elderly person who is highly vulnerable, but still has mental capacity in a legal sense, to make their own decisions.
The dark side of the pandemic is that it has created a ‘perfect storm’ of circumstances that can be exploited. Many of our elderly are currently living alone, anxious about coronavirus and in isolated circumstances. They may be highly dependent on a very small number of people.
Financial abuse is not just about stranger ‘cold callers’ and ‘phone scammers’ – though these cases are often those that hit the headlines. It can be the gradual slippery slope of frequent small gifts of money to a nephew that escalate – or, a one off substantial transaction of a property being given to a relative ‘to avoid care home fees’.
Sadly, anyone who is a caring role can quickly gain ‘ascendancy’ over an elderly person which can lead to financial and/or other forms of abuse taking place. That can include a form of abuse called predatory marriage, which I‘ve written about before.
What is financial abuse?
- Misappropriation of money or property.
- Misuse of assets.
- Exerting undue influence to give away assets or gifts or to make a will.
- Putting undue pressure on an older person to accept lower cost/lower quality services in order to preserve more financial resources to be passed to beneficiaries on death.
It is estimated that between 1% and 2% of people aged 65 or over in the United Kingdom today have suffered, or are currently suffering, financial abuse since turning 65.
A review for Help the Aged in 2008 found that 70% of financial abuse is perpetrated by family members and that 60% to 80% of financial abuse takes place in the home, with only 15% to 20% in residential care.
A startling statistic from the study was that 50% of financial abuse of the elderly in the UK is perpetrated by adult children against parents.
There can be a misapprehension that if a victim of financial abuse has mental capacity that “it’s their choice” and nothing can be done. That’s not true. With support and understanding it may well be possible to recover money or property that has been wrongfully taken during the victim’s lifetime. If the abuse is discovered after the victim has died, again legal action can be taken if the amount involved justifies it.
If the case involves someone transferring their interest in a property, or giving away a sum of money the legal argument is often about ‘undue influence’. Criminal remedies may be available e.g. in cases of fraud or coercion. If the parties live together, there may be family law remedies available in terms of an injunction to remove the perpetrator from the property or an occupation order.
Elderly victims of financial abuse who still have mental capacity, are considered in law to have the wherewithal to take action on their own behalf. The reality is that the shame, exhaustion and trauma of tackling financial abusers means that this simply isn’t true, in my experience. Family and friends are left to ‘mind the gap’ and that’s wrong.