In cases where financial abuse affects families and the elderly, there are three official avenues in Victoria that can lead to a resolution: through mediation between the parties, through the Victorian Civil and Administrative Tribunals (VCAT), or through the Office of the Public Advocate.

These are processes, however reaching a resolution can take time and often will lead to a change or even a breakdown of family relationships.

Barrister Panayiota (Pat) Karnis who among other things specialises in family law and is a nationally accredited mediator (Alternative Dispute Resolution) spoke to Neos Kosmos about two cases where families went into dispute over the assets earned by their elderly parents.

Ms Karnis said she preferred to see matters settled through mediation rather than going through the courts as it was the best way to preserve a family relationship. She said that matters resolved through mediation were legally binding only if the parties signed to the mediation agreement. A mediator’s role is to assist parties to come to a mutually acceptable agreement, Ms Karnis said.

She told Neos Kosmos of a case she had handled where the son, who was divorced, had put constant pressure on his father, who was in his 80s, to give him his inheritance before he died.

Unknown to his father, the son had a drug problem. He put a lot of pressure on his father, harassing him with telephone calls and turning up at his home to ask for the money and accuse him of not doing anything for him when he was young, said Ms Karnis.

“The matter came to me for mediation and the whole process took over six months. Although the matter was not resolved by mediation it allowed the parties to explore all the issues they were in conflict about.

“It allowed the father to take the time to see how he could best look after his son and grandchildren through his estate. He realised that something was wrong with his son,” Ms Karnis said.

“What was necessary was for him to find the confidence and he had the capacity to reach a decision. In the end, the father left most of the estate to his former daughter-in-law to look after the three grandchildren and to provide for his son.”

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One consequence was that he lost the relationship that he had with his son.

In another case that was dealt with by a colleague, Ms Karnis said the elderly mother of two children in their 50s was put into a care home as she was suffering from Parkinson’s Disease and dementia.

The son who had remained in the family home was the primary carer for both his father who remained at the family house and his mother who went to the care home.

The daughter, who lived independently, issued an intervention order against her father on her mother’s behalf, alleging that he had been violent and that she should be her mother’s legal guardian. The aim was to get at her mother’s estate, said Ms Karnis.

VCAT decided against the daughter and ruled that the father should remain the guardian as it found no evidence of abuse during the marriage.

“The relationships were fractured in that family. The VCAT proceedings helped the father to manage the affairs but the relationship with his daughter was gone. The trust between brother and sister was also damaged.

“It was a sad thing that the mother should be in a home and his father lost his child over money.”

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Neuropsychologist Matthew Staios whose PhD studies focus on the current gold standard of capacity testing in Australia for diagnosing the mental state of the elderly has said the test was inappropriate as it lacked cultural sensitivity and it failed to take into account their past histories. He has said that CALD (Culturally and Linguistically Diverse) Australians were two to three times more likely to be misdiagnosed with dementia as a result.

He said such at test was particularly relevant in situations where the financial competence of the elderly was being brought into question – particularly when family members sought access their elderly parents’ savings by claiming they were no longer able look after their own affairs.

“This issue has always been around but it is becoming more common now with a large ageing population so there are more cases now.”

The main bodies that would rely on such a test to determine financial competence and act upon that decision in Victoria were VCAT and the Office of the Public Advocate. These organisations have the power to appoint an independent person to administer the funds of the people found to be incapable of managing their own affairs.

Mr Staios has had been called to give evidence before VCAT and court hearings where families have sought access to their parent’s savings. He added that there were also cases where carers were involved.
In such hearings, signs of cognitive impairment, anxiety, depression and dementia are used to make determinations.

“The process involves multiple medical examinations which can cause depression and anxiety. I have seen it before in a Supreme Court hearing where the kids were fighting over the estate, and the barristers were making and winning arguments on competence – it is unethical, unfair and is heading towards an abuse of human rights,” Mr Staios said.

He said the fact that their children were calling their parent’s competence into question or were bickering over the estate were in themselves the cause of the anxiety and depression that would then be regarded as signs of a loss of competence.

“These people worked hard and had the ability to save and invest all their lives and they are suddenly told they are no longer competent or that they are not smart enough to manage their situation independently – that is very prejudicial and unfair.

“Many of these cases can go on for two to three years and one has to ask what that does to the mental health of the vulnerable.

“I wonder how many elderly parents do not say anything (about financial abuse) to protect their dignity or their children or because of cultural norms,” Mr Staios said.