Sadly, it’s all too common for people to attempt to secure an unfair share of a loved one’s estate. Through manipulating the loved one – made easier if that person is elderly and vulnerable – they seek to gain a financial advantage at the expense of other beneficiaries and against the loved one’s true wishes. This may involve encouraging the loved one to change their Will to their advantage or even trying to access some of their money before they die.
While there are legal options to claw back a fair share of a loved one’s estate once they pass away, it’s a challenging and often very expensive process. A far better outcome is to identify a potential problem early and nip it in the bud before it’s too late. Without anticipating any problems regarding an estate that may come down the line, you may be facing an ugly, protracted legal battle in future.
I’m often surprised that clients don’t see the signs sooner that a family member is behaving in a nefarious way. I believe the reason for this is that we usually want to give our family members the benefit of the doubt, even when faced with poor behaviour on their part. This can blind us to the realities of what’s actually happening. While in retrospect, the signs may have been obvious, at the time we don’t want to believe it. Unfortunately, in many cases the family member is banking on this to get away with it.
The first step in intervening to prevent a family member from trying to get more than their fair share from a loved one is to look out for the early warning signs. Here are some of the red flags that should raise suspicion.
If you’ve noticed that a family member is suddenly cozying up to the elderly loved one, this could be a red flag. This is especially the case if they hadn’t had a particularly close relationship previously. If the family member is trying to position themselves as the “favourite”, or you’ve heard your loved one suddenly refer to them this way, it can be a telling sign they are trying to gain a financial advantage.
The family member may isolate the loved one from other family members. This can be an attempt to monopolise control over the loved one or make the loved one feel that other family members don’t care about them in an attempt to gain favour. It’s also a way to hide financial transactions or other decisions, as the loved one is prevented from alerting other family members as to what’s going on.
In one case I worked on, the first warning sign that something untoward was going on was when jewellery went missing. The adult son told his elderly mother that he was taking the jewellery to get repaired but never returned the items. When the woman complained to her other adult children that the jewellery still hadn’t been returned after several months, they were then able to intervene. The offending sibling feigned outrage over being accused, however this was also a sign that the behaviour was untoward. Usually if it’s a simple misunderstanding, there is a straightforward explanation, which in this case there was not.
When valuable items go missing – however small – the family member may be testing the waters to see what they can get away with. It’s reasonable to expect that if they are successful at taking ownership over less valuable things, soon enough they will be seeking more valuable things.
If a family member has changed the account details for a loved one’s financial accounts without sharing those details with other family members, this is a big red flag. They may be attempting to hide financial transactions from the rest of the family, or gain control over future transactions.
If you believe your loved one is making unusual financial decisions that you believe are against their actual wishes, this is a bad sign. This could include loaning someone money, paying off someone’s debt or taking out a mortgage. Even if you’re satisfied with these decisions, if the outcomes favour a particular family member over others, it could be a sign that the family member is manipulating the loved one.
If a family member is experiencing financial difficulty, then this could drive them to seek out money by all means possible, including manipulating your loved one. Desperation can lead to some very poor behaviour. In other cases, the family member may simply be greedy and will usually have a track record of greedy behaviour. If there is a big financial disparity between beneficiaries, this can also be a red flag.
While we may not always like to admit it, sometimes relationships with other family members have already been strained for a while. It’s important to be honest with yourself about whether you genuinely trust the family member and whether they might be capable of greedy and selfish behaviour.
Once you’ve identified a potential red flag, now is the time to intervene. There are four main courses of action. Firstly, if you suspect your loved one is a victim of elder abuse, that financial transactions may be taking place without your knowledge or the loved one’s items have begun to go missing, engage a lawyer to write to the offending family member. In a ‘best case scenario’ this will scare off any future poor behaviour and rectify the immediate situation. If it doesn’t fix the problem, you at least have a record of the behaviour, which may prove useful down the track should you need to take further legal action.
Secondly, if you are concerned that your loved one has been able to be manipulated because their capacity has declined, you can seek to have them medically assessed to determine whether they still in fact have capacity. If it is found they do not have capacity, then this may act as a deterrent to the family member, whose manipulative behaviour will now be under the spotlight.
Thirdly, if the family member has power of attorney, you can apply to the appropriate body in your state (in New South Wales, it is the NSW Civil and Administrative Tribunal) to cancel the power of attorney on the grounds that your family member is not acting in the best interests of your loved one. To ensure the process is as successful and as fast as possible it’s best to work with a lawyer.
Finally, it’s important to be persistent, not complacent. Don’t sit back if you suspect something. Confront your family member. If they have nothing to hide then there will generally be a simple explanation for their behaviour. If a family member is trying to prevent you from seeing your loved one, show up at their doorstep. Be persistent to the point of pushy. The more you are in contact with your loved one and the family member, the more you will learn about what is really going on. The more questions you ask and the more involved you are, the less likely it is that things will go wrong.
IMPORTANT LEGAL INFO This article is of a general nature and FYI only, because it doesn’t take into account your financial or legal situation, objectives or needs. That means it’s not financial product or legal advice and shouldn’t be relied upon as if it is. Before making a financial or legal decision, you should work out if the info is appropriate for your situation and get independent, licensed financial services or legal advice.