It is very important to take a detailed statement early on from your client about transactions that have occurred, particularly verbal ones, because over time your client’s ability to recall events may be affected by illness, memory issues and loss of capacity.
The action taken will depend on what outcome your client is seeking. Do they want to:
- be returned to the position they were in prior to the abuse occurring?
- have their property restored to them?
- be moved away from a situation of undue influence?
You also need to consider:
- whether funds can be recovered
- costs of legal action
- merit of the case
- impact on family relationships.
For example, if the recovery of funds is sought following a misuse of a power of attorney, be aware that VCAT cannot order restitution. You first need to check whether there are funds left to be recovered and then, taking costs into account and assuming your client agrees, proceedings may be issued in the County or Supreme Court (see Equity).
Where appropriate, an administrator appointed by VCAT (such as a relative or State Trustees or a private firm for a fee) may assist clients to regain control of their finances or take action to recover money. The factors above are relevant. Some administrators may not assist unless the case has merit and the client has money to fund any litigation. (See Guardianship and Administration.)