Elderly a target for financial abuse

12-May-2014 Family Law By Simone Green

A recent study has revealed that more than half of the calls made to the NSW Government’s Elder Abuse Helpline related to financial abuse. Many elderly people reportedly put up with or give into their children’s financial demands because they do not want to ‘rock the boat’. They often tolerate this bullying behaviour due to the fear they will damage or lose contact with their family members.

But there are also instances of partnerships or marriages where an elderly man or woman is deceived by a younger partner whose motivation to marry is for financial benefit.

The recent case of Oliver (deceased) & Oliver, on 14 February 2014, is a rare case where the mental incapacity of the husband, aged 78 at the time, was a ground for the Court to rule the marriage to his 49-year-old wife in April 2011 was void. The conclusion of this case came five months after the death of the husband (in September 2013).

The wife was formerly the cleaner for the husband. There was evidence to support the claim that the deceased had a host of issues in relation to his mental capacity dating back to 2001. He also had other medical conditions arising out of his alcohol abuse. He was admitted to a nursing home four months after the wedding “suffering from cognitive impairment, dementia and a raft of other health issues.”

The deceased’s family had been informed that the marriage would take place in June 2011 but later found that the couple had in fact married in April.

The Court took into account a number of factors, including the age and financial disparity between the deceased and the Respondent, and the Respondent’s financial motivations in amending the deceased’s Will.

The deceased’s granddaughter brought an application under Section 113 of the Family Law Act 1975 as to the validity of the marriage. The Court was informed that the husband and his wife had visited his general practitioner, who provided a certificate that he was “of sound mind and capable of making rational decisions about his affairs”. They also met with the husband’s solicitor and signed a new Will before (but in contemplation of) the marriage, which ensured his entire estate would be left to the Respondent wife.

The deceased and the Respondent attended the marriage celebrant to complete documentation for the marriage and were due to attend a further appointment; however the deceased’s ill health prevented this proceeding.

The general practitioner, solicitor and the marriage celebrant were not called by the Respondent to give evidence and no explanation as to their absence was provided to the Court.

The deceased’s family told the Court that the Respondent was making “regular drawings” on his bank account.

The Court was satisfied that the deceased had “ongoing significant mental and cognitive incapacity, particularly in the 12-month period preceding the wedding ceremony, which continued as at the date of the ceremony.” The Court took into account a number of factors, including the age and financial disparity between the deceased and the Respondent, and the Respondent’s financial motivations in amending the deceased’s Will.

The Court held that the deceased did not have the capacity to understand the nature and effect of his marriage to the Respondent and declared the marriage void.

This case is one of a very small number of reported legal judgments where a marriage has been declared void.

People need to be made aware of the potential threats that can invade the lives of their elderly friends, family and neighbours.

Old age is a delicate phase in life where the elderly are often more relationally isolated and their increasing physical frailty inhibits access to support and information services.  It is important that we remain vigilant to protect these more vulnerable members of our community. The judicial system is available to protect rights and recover wrongs. However, prevention is better than the cure.

The NSW Consumer and Administrative Tribunal (NCAT) has a specialist Guardianship Division and their website has further links to helpful resources. For further information, go to: www.ncat.nsw.gov.au

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