Elder Abuse
Aptum runs civil recovery matters for older Australians and their families where substantial assets have been taken through undue influence, unconscionable dealing, misuse of a power of attorney, or exploitation of a position of trust. Recovery in the person's lifetime, and after death for the estate.
What is financial elder abuse?
Financial elder abuse is the misuse or exploitation of an older person's money, property, or financial position by someone in a position of trust or authority over them. It runs on a spectrum from small-scale misuse (unauthorised use of a bank card) through to substantial loss of assets built over a lifetime.
The Australian legal system does not have a single "elder abuse" cause of action. Instead, the civil recovery pathway runs on well-established legal frameworks that have been applied in this context for decades:
- Undue influence in equity, where the older person's free will was overborne in a transaction or a testamentary disposition
- Unconscionable dealing under equity and the Australian Consumer Law, where a special disadvantage of the older person was exploited to obtain an unfair benefit
- Breach of fiduciary duty, where an attorney under a POA, a trustee, or another fiduciary used the position for their own benefit
- Recovery of gifts and transfers, where the older person made a transfer under a mistake, misrepresentation, or without knowing what they were doing
- Family provision claims where a will has been influenced to produce an outcome that fails to properly provide for dependants (see Family Provision Claims)
- Estate recovery after the older person's death, where the executor holds the claim on behalf of the estate
Aptum acts for older Australians who have been exploited (either directly, or through a properly appointed litigation guardian where capacity has been lost) and for family members and executors bringing recovery actions.
What Aptum does and does not do
Aptum runs civil recovery. Where substantial assets have been taken, the pathway to bring the money back is a civil action against the person or persons responsible. That is what Aptum does.
Aptum does not do the criminal side. Financial elder abuse can be a criminal offence (fraud, deception, obtaining a financial advantage by deception). Criminal matters are properly handled by police and the state DPP. Aptum can coordinate with a criminal proceeding where required but does not run the criminal prosecution.
Aptum does not do the protective side. Where an older person is in immediate danger, or where their day-to-day welfare is at risk, the appropriate services are police, community-based elder protection services, and (in aged care settings) the Aged Care Quality and Safety Commission. Aptum can refer clients to these services and can operate alongside them.
Aptum's clients are usually one of three types.
- Older Australians (or their properly appointed litigation guardians) with substantial assets that have been taken or are at risk
- Adult children or other family members who have discovered exploitation of an older parent and need to protect assets and pursue recovery
- Executors administering an estate where they have discovered that the deceased was exploited in the lead-up to death
"The whole team from the top of Aptum Legal down to the support team have all been very professional and always gone above and beyond for me and my family. I will highly recommend them for future work with people in my network needing legal professionals."
Types of elder abuse matters Aptum runs
Recovery of assets taken by an attorney under an enduring POA
The most common pattern. An enduring POA was signed years ago. Over months or years the attorney has used the authority to make transfers to themselves or family, sell property, or consume the older person's assets. See also Powers of Attorney Disputes.
Recovery of transfers made under undue influence
Where the older person made a gift, transfer or other disposition of assets under undue influence, the transaction can be set aside and the assets recovered.
Recovery under unconscionable dealing doctrine
Where a transaction was procured by exploitation of the older person's special disadvantage (age, dementia, isolation, dependency, cognitive impairment, emotional vulnerability), the doctrine of unconscionable dealing (both in equity and under the Australian Consumer Law) allows the transaction to be set aside.
Recovery from family members
The most difficult pattern. The abuser is often a family member (adult child, spouse of an adult child, sibling). Recovery requires the family relationship to be set aside for the purposes of the litigation, and the matter is often emotionally charged for the older person and other family members.
Recovery from carers, advisers, and professionals
Where the exploitation has come from a paid carer, a financial adviser, a lawyer, an accountant, or another professional, additional causes of action (breach of professional duty, breach of contract, professional negligence, breach of the ACL) can be brought against the professional and (in most cases) their insurer.
Recovery from institutions
Where an institution (bank, aged care provider, financial services provider) has facilitated the exploitation or failed to detect it, additional claims may be available against the institution.
Estate recovery after the older person has died
Where the exploitation was discovered only after death, the executor can bring recovery actions for the benefit of the estate. Often runs alongside a family provision claim or a will validity challenge.
Setting aside wills procured by undue influence
Where a will has been procured by the exploitation of the older person, the will can be challenged under the "suspicious circumstances" doctrine or as procured by undue influence. See Challenging the Validity of a Will.
Urgent protective orders
Where assets are at risk of being spent or hidden, urgent applications for freezing orders, search orders, or restraint against dealings can be brought.
Guardianship and administration applications
Where the older person has lost capacity and there is no appropriate person to manage their affairs, applications can be brought to the state civil and administrative tribunal to appoint a guardian and administrator.
How Aptum runs an elder abuse matter
Value conversation
A no-cost first meeting where you set out what has happened, who has been involved, the older person's current position and capacity, and what assets are at stake. We tell you which recovery pathways are realistic, whether urgent orders are needed to protect assets, and what the next steps look like.
Pathways assessment
If the matter is realistic and you want to move forward, we scope it, identify the bank records, transfer records, POA documents, medical records and family history that will need to be assembled, and give you a costed engagement plan.
Execution
We run the matter. Urgent orders to protect assets where required, formal notice to the abuser, court proceedings for recovery, tribunal applications for guardianship or POA removal where needed, and (where required) coordination with police, aged care regulators, and other agencies.
The two key equitable doctrines
Financial elder abuse recovery almost always runs on one or both of two equitable doctrines: undue influence and unconscionable dealing. Australian courts have developed both extensively.
Undue influence
Undue influence is a doctrine of equity that allows a transaction to be set aside where the free will of one party was overborne by the influence of another. There are two categories:
Actual undue influence. Direct evidence that the transaction was procured by pressure or coercion.
Presumed undue influence. Where a relationship of trust and confidence existed between the parties (parent/child, patient/carer, elderly principal/attorney), and the transaction produced a benefit to the person with influence, undue influence is presumed. The burden then shifts to the person who benefited to prove the transaction was fair.
Unconscionable dealing
Unconscionable dealing is a related but distinct doctrine. A transaction can be set aside where one party was under a special disadvantage (age, illness, cognitive impairment, isolation, emotional dependency, inexperience) and the other party knowingly took advantage of that disadvantage to procure the transaction on unfair terms.
The 1983 High Court decision in Commercial Bank of Australia v Amadio remains the leading authority. The 1998 decision in Bridgewater v Leahy applied the doctrine in an elderly family context.
Statutory unconscionable conduct. In addition to the equitable doctrine, section 20 of the Australian Consumer Law prohibits unconscionable conduct within the meaning of the unwritten law, and section 21 prohibits unconscionable conduct in trade or commerce on a broader statutory test. Both provisions are relevant where a business or professional has been the exploiter.
The urgency question
Elder abuse matters are often urgent. Assets can be spent, transferred, or hidden while the family works out what to do. The practical response is usually a combination of:
- Freezing orders in the state Supreme Court to prevent dealings with specific assets (bank accounts, property, shares)
- Search orders where there is a real risk of evidence being destroyed
- Injunctions restraining specific conduct (further transfers, dealings with property, contact with the older person)
- Urgent tribunal applications to remove an attorney, appoint an administrator, or take other protective steps
Aptum can move quickly on urgent orders where the facts warrant it. In many matters, the freezing order is the single most important step because it preserves the assets while the underlying recovery is worked through.
Featured case study
Elder abuse recovery matters often intersect with the broader trust and estate work Aptum runs, particularly where the older person's wealth was held through family trusts, family businesses, or superannuation.
Read the flagship complex matter in Complex Trust and Estate Asset Disputes.
What's changing in Australian elder abuse law
Regulatory attention has grown significantly
The Australian Law Reform Commission's 2017 report Elder Abuse: A National Legal Response and the follow-through by state and federal governments has raised the profile of financial elder abuse across the legal system.
The National Plan to Respond to the Abuse of Older Australians (2019 to 2023) drove state-level reforms
Powers of Attorney legislation was tightened in Victoria, Queensland and other states. National register initiatives for enduring documents have been under active consideration.
The Aged Care Royal Commission (2019 to 2021) exposed patterns of financial mismanagement in institutional settings
Recovery claims against aged care providers for financial mismanagement or facilitated exploitation are a growing category.
Banks and financial institutions are more attuned to elder abuse indicators
Australian banks have adopted the Banking Code of Practice with specific elder abuse provisions and internal escalation processes. Institutional liability for failing to detect or act on obvious warning signs is being tested.
Undue influence and unconscionable dealing case law continues to develop
Recent decisions in state Supreme Courts have reinforced that these doctrines are the primary vehicles for elder abuse recovery in Australia, and have refined the evidence requirements.
Frequently asked questions
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What counts as financial elder abuse?
Financial elder abuse is the misuse or exploitation of an older person's money or property by someone in a position of trust. It includes unauthorised transfers from bank accounts, misuse of a power of attorney, procured gifts or transfers of property, and exploitation of an older person's cognitive decline or dependency to obtain a financial advantage. It runs from small-scale misuse to substantial loss of assets.
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Can I recover assets that have been taken from an elderly parent?
Yes. If your parent has capacity, they hold the claim (and can instruct lawyers directly or authorise you to instruct on their behalf). If they have lost capacity, recovery actions can be brought through a properly appointed litigation guardian or (after death) by the executor of the estate.
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Do I need my parent's permission to bring a claim?
If your parent has capacity, yes. They hold the claim and it is their decision whether to pursue it. If your parent has lost capacity, formal authority is needed (litigation guardian appointed by the court, or an administrator appointed by the tribunal). Where your parent has died, the executor holds the claim on behalf of the estate.
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What if the parent has lost capacity?
Recovery can still be pursued, either through a litigation guardian appointed by the court to run the claim on your parent's behalf, or through a formally appointed administrator under a state civil and administrative tribunal decision. Where an attorney under a POA has been the abuser, the tribunal can remove them and appoint someone else to manage the affairs.
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What if the abuser is a family member?
Most financial elder abuse is committed by family members. Recovery in these cases is emotionally difficult but legally routine. The action runs on the same doctrines (undue influence, unconscionable dealing, breach of fiduciary duty) regardless of the family relationship. Aptum runs the matter with the technical and evidentiary discipline required and coordinates the family dynamics carefully.
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Can I recover after the elderly person has died?
Yes. The claims survive death and are held by the executor for the benefit of the estate. Estate recovery is often the first point at which the exploitation is fully uncovered, because the executor conducts a full review of bank and property records after death.
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What is the difference between elder abuse and undue influence?
"Elder abuse" describes the underlying conduct. "Undue influence" is one of the legal frameworks used to obtain recovery for that conduct. Not every case of elder abuse fits undue influence, and not every case of undue influence involves an older person, but the two overlap significantly in the elder abuse context.
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What can I do urgently to protect assets?
Freezing orders in the state Supreme Court, search orders where there is a real risk of evidence being destroyed, injunctions restraining specific conduct, and urgent tribunal applications to remove an attorney or appoint an administrator. In appropriate cases, Aptum can move to court on the same day.
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Are elder abuse claims criminal or civil?
Both. Financial elder abuse can be a criminal offence (fraud, deception, obtaining a financial advantage by deception) and it can also be pursued as a civil claim for recovery. Aptum runs the civil recovery side. Criminal matters are handled by police and the state DPP, and Aptum can coordinate with a criminal proceeding where required.
Thinking on elder abuse
Aptum publishes regularly on the questions that decide elder abuse matters.
The Aptum elder abuse team
Michael Buscema
Michael Buscema spent 11 years with the ATO and Commonwealth Treasury, including as acting Assistant Commissioner, before joining Aptum as a practice lead. He acts for private wealthy groups and families in complex, high-value disputes, and has negotiated settlement and security arrangements totalling over $1 billion.
Estate disputes over substantial asset pools are rarely just about the will — trust structures, superannuation and tax consequences run through them, and Michael brings senior experience on exactly those fronts.
Nigel Evans
Nigel Evans, Aptum's Managing Director and Co-Founder, leads Aptum's estates practice. Before founding Aptum, Nigel spent 11 years at the commercial Victorian Bar, where much of his practice touched on trust structures, fiduciary breach and equitable remedies. He is listed in Best Lawyers in Australia for Commercial Litigation (2026) and recognised by Doyle's Guide as a Leading Commercial Litigation and Dispute Resolution Lawyer.
Get clarity on your elder abuse concern
If you have discovered that an older family member's assets have been taken or are at risk, timing matters. Assets get spent and hidden while the family works out what to do, and the practical route to recovery narrows over time. If urgent orders are needed to protect assets, Aptum can move quickly. Book the value conversation this week.
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Aptum services estates clients across Australia from three offices.