Best Practice Guides for Legal Practitioners in Relation to Elder Financial Abuse and Assessing Mental Capacity
15 June 2023
On World Elder Abuse Awareness Day, 15 June 2023, the Law Council launched its revised Best Practice Guides for Legal Practitioners in Relation to Elder Financial Abuse (Best Practice Guide—Elder Financial Abuse) and its new companion, Best Practice Guide for Legal Practitioners on Assessing Mental Capacity (Best Practice Guide—Assessing Mental Capacity).
Best Practice Guide– Elder Financial Abuse
Legal practitioners have a crucial role to play in the prevention of financial abuse of older persons. Older persons can be assisted in protecting themselves against current and future abuse, and lawyers can also be alert to the potentially abusive nature of transactions which are commonly agitated before courts and tribunals.
The Best Practice Guide Elder Financial Abuse relates to the delivery of services by legal practitioners regarding the preparation and execution of wills and other advance planning documents. It sets out best practice measures, which legal practitioners may adopt to identify and respond to the risk of financial elder abuse arising in the execution and performance of such documents. These measures – which traverse preparation for a meeting with a client, meeting procedures, and recording evidence of the meeting – are supported by an in-depth review of existing judicial authorities.
The Best Practice Guide – Elder Financial Abuse was revised following a comprehensive review in 2022-23, in consultation with the Law Council’s Constituent Bodies and aided by the advice of its expert National Elder Law and Succession Law Committee.
The Best Practice Guide – Elder Financial Abuse was first developed to respond to a recommendation by the Australian Law Reform Commission in its Elder Abuse: A National Legal Response report that best practice guidelines be developed for legal practitioners in relation to the preparation and execution of wills and other advance planning documents.
Best Practice Guide – Assessing Mental Capacity
The assessment of mental capacity is an essential, but complex task to be performed by a practitioner in advising on the execution of a will or other advanced planning document.
The Best Practice Guide – Assessing Mental Capacity was conceived as an extension of clause 2.6 of the Best Practice Guide – Elder Abuse, which recommends that practitioners consider mental capacity to assist legal practitioners perform their own assessment of mental capacity.
The Best Practice Guide – Assessing Mental Capacity provides detail as to a practitioner’s obligations in assessing mental capacity in various circumstances and practical guidance as to how this obligation may be performed. The Best Practice Guide – Assessing Mental Capacity was developed with the advice of its expert National Elder Law and Succession Law Committee, again in consultation with the Law Council’s Constituent Bodies.
Constituent Body materials
The Law Council’s Constituent Bodies have also produced materials for use by the legal profession to guide best practice to mitigate against the risk of elder abuse or in relation to assessments of mental or testamentary capacity.
- The Law Society of South Australia has published:
- The Law Society of Western Australia has published:
- The Law Institute of Victoria has published:
- The Queensland Law Society has published:
- Elder Abuse Joint Issues Paper, jointly with the Public Advocate
- Queensland Handbook for Practitioners on Legal Capacity, jointly with Allens and Queensland Advocacy Incorporated (currently under review)
- the Guidance Statement No. 05 Witnessing Enduring Powers of Attorney.