Most cases of financial abuse of older people involve ‘improper’ conduct and not criminal conduct. Nevertheless, where a criminal offence is suspected, as your client’s advocate you need to ensure they understand that what has been done to them is no less serious because the perpetrator is a family member and that criminal action is an option.
It may be a big step for your client to have spoken about these matters. They may be attempting to change a dynamic of ongoing abuse, so it is important that you acknowledge the seriousness of what they are communicating, help them feel that you can look after their interests, and give them the appropriate advice.
Possible criminal offences include:
- duress
- fraud
- obtaining financial advantage by deception
- forgery
- assault or the threat of assault.
Why report a suspected offence?
- The fear of prosecution might encourage a perpetrator to desist.
- If the civil period for recovery has ended or there are no assets remaining, a successful criminal prosecution could lead to an order of compensation under the Sentencing Act 1991.
- If there has been a crime involving violence and the matter has been reported to the police, it might be possible to make a claim for crimes compensation to the Victims of Crime Assistance Tribunal.
It is your client’s choice whether to report suspected offences. If you are instructed to follow up such a report, then you should ensure your client is fully advised, for example, that an outcome of criminal prosecution could be the punishment of the accused, but not necessarily the return of their assets. You may need to assist them in contacting the police and help explain to investigating police the seriousness of the allegations and the history and the context of your client’s concerns.
Many clients will not want to pursue a criminal prosecution. Many older people may feel they cannot afford to lose the relationship. Proving that a person has acted with the intention to defraud a family member may be difficult. Your client may be required to give a sworn statement of evidence in court. Even if they were prepared to do this, it might be wise to try instead to negotiate a civil law settlement for restitution or compensation for lost assets.
If your client has been assaulted or threatened with assault but is unwilling to prosecute, seeking an Intervention Order may be an alternative (see Family violence).