People behaving badly – part 1

In my work as a lawyer specialising in Wills and estates, I am witness to some appalling human behaviour. Here are some examples as cautionary tales:

Elder abuse is rife in Australia

Coercive Control, Granny Napping and Predatory Marriages are all occurring with increasing frequency.

There have been 2 Royal Commissions already exploring some of these issues, with more to come. The common theme is the financial exploitation of vulnerable older people in western society.

Financial exploitation disproportionately affects older people in Australia, UK and USA.

Why is this increasing? In part, it is because more and more of us are developing health issues related to dementia as our population ages.

Here are some statistics to give context to the increasing incidence of people suffering dementia:

Shocking Statistics

• The World Health Organization estimates that one in six people aged 60 years or over experienced some form of abuse in community settings during 2020/21.
• The global population of people aged 60 years and older will more than double, from 900 million in 2015 to about two billion in 2050.
• Dementia is the second leading cause of death of Australians^[i].
• Dementia is the leading cause of death for women^[ii].
• In 2022, there are an estimated 487,500 Australians living with dementia. Without a medical breakthrough, the number of people with dementia is expected to increase to almost 1.1 million by 2058^[iii].
• In 2022, there are an estimated 28,800 people with younger onset dementia, expected to rise to 29,350 people by 2028 and 41,250 people by 2058. This can include people in their 30s, 40s and 50s^[iv].
• In 2022, it is estimated that almost 1.6 million people in Australia are involved in the care of someone living with dementia^[v].
• Financial exploitation can affect anyone; however, in Australia, UK and USA, older people are disproportionately affected. The average age of a victim is 74, and 53 per cent of victims are aged 65 and over.

What is Predatory Marriage?

Predatory marriage is the practice of marrying an elderly person exclusively or mostly for the purpose of gaining access to their estate upon their death.

While the requirements for mental capacity to make a valid Will are high, in most jurisdictions the requirements for entering into a valid marriage are much lower, such that even a person suffering dementia may enter into marriage.

Predatory marriages have recently come under particular scrutiny following the English case of Joan Blass, which prompted a change of English legislation.

The Joan Blass case

Joan Blass was 91 and diagnosed with severe dementia and terminal cancer. After her death in March 2016, it was discovered that a younger man, aged 68, had secretly married her five months prior to her death.

Her family believed that she never knew that she was married, a claim supported by evidence given by Blass’s own GP at trial. However, because she had validly married, the marriage automatically revoked her Will and her estate was inherited in accordance with the rules of intestacy, meaning that her new husband inherited her share of the family home, her savings and personal possessions.

Blass’s family commenced legal action to seek to prove that Blass did not have capacity to marry, but were unsuccessful in their action.

Capacity to marry

As a result of this experience, a movement has begun calling for several changes to the legal system, one of which is to train wedding registrars to look for signs of mental incapacity when marriages are being conducted.

So, what is the test for capacity to marry and how could it be considered by registrars in practice?

The threshold for capacity to marry is relatively low, as set out in recent Court decisions where the Judges have explained that whether someone had capacity to marry depended on whether the person understood the nature of the marriage contract and the duties and responsibilities that normally attach to marriage.

This issue is not one that will simply go away. The case of Joan Blass is one of many, and with an ageing population and increasing cases of dementia, it seems likely that such cases will increase.

Possible solutions include capacity assessments ahead of marriage. There have been some cases of clients that have been assessed by a psychiatrist as having capacity to marry but not capacity to make a Will. This is because there are different standards for capacity depending upon the transaction involved. For example the standard of capacity required to fill-in a Medicare form is much lower than that required to make a valid Will.

Of course, there are always those in society who resent and object-to increasing Government interference with the private lives of individuals. There are always people on social media screaming that the Will of a deceased person should NEVER be interfered-with by anyone, for any reason. Extrapolating from that, one can only wonder how those people will feel about infringing the rights of people to get married.

Summary

Financial exploitation can affect anyone, but within Australia, UK and USA older people are disproportionately affected. This issue is likely to only become more prevalent. Internationally, lawyers are starting to discuss this issue and consider how vulnerable people can be protected across borders.

In future articles, I plan to discuss ‘Granny Napping’, coercive control, abuse of power of attorney, uncooperative executors, and other examples of appalling conduct by family members of older or deceased relatives.

In the meantime, if you or someone you know is being subjected to financial abuse or coercive control by another, seek legal advice from a law firm that specialises in Elder Law, Trusts and Guardianship.

Genders and Partners is the oldest law firm in South Australia, established 1848. Contact us to learn how to protect yourself, your family and your assets by assisting you to administer a deceased estate, by visiting our website today and schedule a free no obligation telephone consultation to find out how we can help protect you and yours.

^[i] Australian Bureau of Statistics (2020) Causes of Death, Australia, 2019 (cat. No. 3303.0)

^[ii] Australian Institute of Health and Welfare, Dementia Snapshot, July 2020

^[iii] Dementia Australia (2018) Dementia Prevalence Data 2018-2058, commissioned research undertaken by NATSEM, University of Canberra

^[iv] Based on Dementia Australia’s analysis of the following publications – M.Kostas et al. (2017) National Aged Care Workforce Census and Survey – The Aged Care Workforce, 2016, Department of Health; Dementia Australia (2018) Dementia Prevalence Data 2018–2058, commissioned research undertaken by NATSEM, University of Canberra; Alzheimer’s Disease International and Karolinska Institute (2018), Global estimates of informal care, Alzheimer’s Disease International; Access Economics (2010) Caring Places: planning for aged care and dementia 2010–2050

^[v] Australian Institute of Health and Welfare (2012) Dementia in Australia

NEED ADVICE? JUST ASK US A QUESTION. (replies during business hours)