Elder Abuse, Legal Capacity and Document Control: A Cautionary Tale for Victoria
At Hayton Kosky Lawyers, we’ve recently dealt with a concerning matter that highlights a growing problem in Victoria’s ageing population: elder abuse involving legal documents, including wills and certificates of title.
While we must keep the details confidential, the situation involved a 90-year-old man (let’s call him Mr X) who had no spouse or children, limited local social connections, and a modest but significant estate, including a home he had owned for decades. Having made his will in 2023 and discharged the mortgage on his property shortly after, he had every right to expect that his affairs were in order.
Then things changed.
What Happened?
In mid-2025, a third party – not a family member, not someone with known legal authority – presented an unsigned, non-professional letter requesting the release of Mr X’s original will and Certificate of Title. It was supposedly authorised by Mr X, but we had serious concerns about the authenticity and surrounding circumstances.
Mr X had always dealt directly with our firm in the past. The request came out of nowhere. When we reviewed his past visits and behaviour, a clearer picture emerged – a potential case of elder abuse, or at least undue influence.
He had previously arrived at our office with someone claiming to be his power of attorney. That document was neither prepared nor held by us. When asked to meet privately with Mr X, the individual became agitated and defensive. These red flags, coupled with medical and linguistic vulnerabilities, raised alarm bells.
Understanding Elder Abuse in Victoria
Elder abuse is any act that causes harm to an older person carried out by someone they know and trust. This can include:
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Emotional manipulation
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Financial exploitation
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Undue influence over legal or financial decisions
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Isolation from family or trusted professionals
In Victoria, elder abuse is now recognised as a significant legal and social issue, with increasing attention from government and legal authorities.
As lawyers, we have a duty to act when we suspect a client may be under duress or unable to act independently. This duty becomes critical when wills, enduring powers of attorney, or property ownership documents are involved.
Legal Safeguards Under Victorian Law
In Victoria, the Powers of Attorney Act 2014 (Vic) and the Guardianship and Administration Act 2019 (Vic) provide the legislative framework for appointing decision-makers and protecting those who may lack capacity.
A few key points:
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Testamentary capacity (i.e., the ability to make or change a will) must be assessed by reference to established legal tests, such as those set out in Banks v Goodfellow.
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Legal documents like wills or property titles must only be released if the solicitor is satisfied that the client has given informed, voluntary, and competent instructions.
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A person making decisions on behalf of another (e.g. under an enduring power of attorney) must always act in the person’s best interests – not their own.
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If there is suspicion of undue influence, coercion, or diminished capacity, a medical assessment may be required, often with a professional interpreter if the client’s first language is not English.
Why This Matters
Older individuals, particularly those without close family in Australia, are especially vulnerable to predatory behaviour. Sadly, in our experience, attempts to obtain control over legal documents are often the first sign that something may be wrong.
Releasing a certificate of title or original will without proper safeguards can open the door to asset-stripping, unauthorised property transfers, or unlawful changes to testamentary intentions.
As legal practitioners, we take our role seriously in defending our clients’ interests – especially when they may no longer be in a position to protect themselves.
What You Should Do if You’re Concerned
If you suspect an older person may be under pressure or at risk of financial or legal abuse, consider the following steps:
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Encourage private and independent legal advice.
Ensure they see their solicitor alone, without third-party interference. -
Seek a capacity assessment.
Particularly if the individual has medical issues, cognitive decline, or communication barriers. -
Report suspected abuse.
You can contact Seniors Rights Victoria on 1300 368 821 or visit www.seniorsrights.org.au. -
Review any enduring powers of attorney.
These can be revoked or varied if there are signs of misuse. -
Consult a lawyer.
Early legal advice can help prevent irreversible damage to the person’s estate or interests.
Final Thoughts
In the case of Mr X, we refused to release his will and title documents without proper verification. We also requested a medical certificate confirming his decision-making capacity, obtained with the help of a qualified interpreter.
It’s a firm reminder: just because someone appears to have authority, doesn’t mean they do – or should.
At Hayton Kosky, we are committed to protecting the rights of older Victorians, especially when they may be vulnerable or at risk of manipulation. If you or someone you know is facing a similar situation, contact our office today for confidential and professional guidance.