Recovery where incapacity or death:
This page will be of interest to:
- Representatives of the elderly who do not have sufficient capacity to conduct their own claim. Representatives may be powers of attorney, administrators appointed by VCAT, carers, or others.
- In the case of the death of the person suffering financial loss, executors and administrators of the estate who may seek to recover suspected losses from elder financial abuse.
Recovery can be made both by the representatives of an elderly person who has lost capacity, and by the executor/administrator of a deceased estate.
Recovery where the victim does not have sufficient capacity:
Anyone with sufficient legal “standing” can pursue a claim for an elderly person who has lost capacity to make the claim themselves.
This will often be the attorney, or attorneys, under a power of attorney (as long as they have not been involved in the abuse). If there is no power of attorney in place, someone could apply to VCAT for an administration order. An administration order is very similar to a power of attorney, but VCAT makes the appointment and specifies what powers the administrator has. This would normally be a relative or other responsible person.
Where the perpetrator of the financial abuse is in fact an attorney under a power of attorney, some other person can make application to VCAT to have the power of attorney revoked or suspended, and seek appointment as administrator, perhaps with specific powers to conduct investigations and if necessary litigation.
Anyone appointed by VCAT to be administrator will almost always be able to claim any costs associated with recovery action from the estate of the person they represent.
Accordingly, there is always the means by which recovery can be pursued. If there is no one with current legal standing to make the claim, a person can be appointed to do so.
Recovery where the victim is dead:
The executor of the estate stands in the shoes of the deceased, and can take any necessary legal action for recovery of funds that are due to the estate.
The executor is in fact under a legal duty to investigate the recovery of any monies due to an estate. Commencing any recovery action may be considered too costly and without much chance of success and recovery action may not be pursued, but the executor must at least investigate.
Again, if the executor of the estate of the person suffering financial abuse is the person suspected of perpetrating that abuse, then there are means by which another person can be appointed to conduct legal enquiry and recovery action if appropriate. That person will be able to recover any associated costs from the estate.
Recovery action generally:
It can be more difficult for a representative to make a claim arising out of financial abuse. The victim either has reduced capacity, or no capacity, to provide details about what happened to them. In the case of death of course the victim can say nothing to assist any recovery process.
However, it is not always necessary to have the direct assistance of the victim. Claims can often be proved adequately by documentation. For instance, there may be a loan agreement in existence which establishes that the loan monies are due and payable. There may be other documentary evidence in this example involving a loan, for instance bank entries and emails or letters passing between the parties.
Moreover, the perpetrator of the financial abuse when confronted with a claim may admit the claim without the need to bring forward anything else.
As we have emphasised in other pages on this website, a claim by representative of the victim will be conducted in exactly the same way in terms of endeavouring to achieve resolution. The recovery process will be commenced by private and confidential negotiation. More formal steps, including instituting a claim in a court, will only be taken if those initial steps are not successful, and only after consideration of the risks of proceeding.
- Incapacity and death are not impediments to making a successful claim on behalf of the victim of financial abuse
- Anyone with appropriate legal standing can make a claim on behalf of the victim. If there is no one with current legal standing, the courts or VCAT can make an appropriate appointment.
- The representative making a claim on behalf of the victim will always be able to recover costs associated with the claim.
- It is not necessary for the victim to give evidence in a claim, very often claims can be established by existing documentation.