Early in my legal career, back in Scotland, I was sent off to a far-flung farm on a case that was to turn a tad testy.
An elderly woman was poised to transfer her house to her son, on the verbal understanding she would stay there until her dying day and wouldn’t be shipped off to a retirement home. There were no legal documents to safeguard the Mum’s rights and, what’s more, neither she nor her son would allow me to prepare them. I wasn’t convinced the woman even had the capacity to make an informed decision, which is a legal essential.
I just couldn’t, legally or in good conscience, let her sign, and insisted there needed to be a medical assessment, for starters, to ensure she had the mental ability to make an informed decision. I had to take some particularly deep breaths as this big, burly farmer flew into a rage, the scale of which did little to assuage my concerns. Eventually, a doctor found that, while she had good and bad periods, on the whole, the woman understood what she was doing, and so against my advice the home was transferred to her son.
Cue terrible ending? Actually, no. True to his word, the son and daughter-in-law cared for Mum until the day she died (at home, as she had wished). Years later, the sheepish farmer paid me a visit. On reflection, he felt, despite his vociferous opposition at the time, I had done the right thing by advocating so strongly for his Mum’s rights. Figuring anyone who would do that in the face of his wrath was someone he wanted on his side, he asked me to be his lawyer.
Even with a further 30-or-so years of life and legal experience under my belt since, it’s still sometimes very difficult to tell – especially on the face of it – if older folk are being coerced, exploited or exposed to the catalogue of other cruelties that fall under the elder abuse umbrella. As that case demonstrated, good and well-meaning family and friends can present as disingenuous and disingenuous family and friends can present as good and well-meaning. So, to this day, faced with similar scenarios, I still err very much on the side of caution, stand my clients’ ground firmly, and push for robust checks, balances and protections.
Proactive protection
So what can be put in place to protect older people, their interests and keep them safe? Ideally, that process will start well ahead of time. Our ability to manage our own affairs can be taken away from us gradually or suddenly, be it through age, illness or accident. If you want to have a say on whom you would want acting on your behalf – your attorney – the time to organise that is now.
An enduring power of attorney is probably the most powerful tool you can implement when you’re fit and well – with the critical proviso that you carefully pick a trustworthy and capable attorney. By way of just one example, I recall one chap a few years back who specifically didn’t appoint one of his children as an attorney, as he felt sure that particular child would attempt to abuse the position to benefit himself. And, sure enough, that’s just what happened when Dad lost capacity. Thankfully, his thoughtfully-chosen, independent attorney was as diligent and honourable as he was clear on his duties, and stood up to the son.
It’s not OK
As a family lawyer, sadly, I do come across cases of elder abuse. Most commonly, it’s psychological abuse, and often involves the likes of bullying and coercion, especially around the changing of a will, giving away assets or someone jockeying to be appointed an attorney. Research tells us, much like any other demographic, the elderly are more likely to be physically, sexually and psychologically hurt by someone they know and trust. It can be overt and leave tell-tale bruises and scars, but, more often, it is insidious and hidden. Victims suffer in silence, some not even aware they’re being abused. Commonly, the abuser is not only someone close to them, but a crucial figure in their life on whom they rely for essential care and support. In 46 percent of cases, it’s a partner or spouse, or their own children.
My professional antenna is always up for signs of a lack of capacity and/or undue influence. Simply put, “capacity” refers to a person’s ability to make, and communicate effectively around, decisions, including what they understand, whether they can reason properly and if they appreciate the significance of their choices. The courts have previously found people have lacked capacity because they were “unduly influenced by the views of others or by undue concern for the burden their condition imposed on others”. Most of us, as children, go on to help our parents in their senior years and, in my experience, the vast majority will do so out of a keen sense of duty, care and love. As lawyers, though, we must always be on the lookout for those who are not.
If there is an immediate risk to you or someone else, please call the police on 111. If the situation is less urgent and you’re unsure what to do, there are support services like the Elder Abuse Response Service’s free, 24/7 advice line (0800 326 6865). A family lawyer can also help assess the risk, be it for yourself, or for an elderly person you’re concerned for. We can advise, too, on the best safeguards, which might include applying for a protection order.
What goes around ...
We can all make a special effort to be helpful to, and respectful of, those more vulnerable than ourselves. While in our younger years, it’s worth remembering we’re all likely to eventually experience declining physical and mental resilience, and become a softer target for the unscrupulous, be they loved ones or scammers we don’t even know. Each of us who makes it to what should be our golden years will become increasingly – and, potentially, completely – reliant on the integrity and morality of those around us.
Dignity Champions
We work with many older people, and are very proud to have signed up to Age Concern’s “Dignity Champions” initiative.
As a signatory, we pledge to:
- Reject stereotypes and focus on the uniqueness of every individual
- Speak up when we hear people speaking negatively about growing old
- Have the courage to question practices we feel are disrespectful to older people
- Not patronize older people
- Be patient, polite and friendly
- Have zero tolerance for abuse or neglect
- Build relationships – we combat isolation and loneliness by getting to know the older people in our lives
Whether you’re a business or an individual, you, too, can make the pledge - click here to learn more.