A registered aged care nurse was barred from working for five years after she engaged in professional misconduct by inheriting over $1 million under the Will of her 92-year-old patient. The aged care nurse has been served with court proceedings to revoke the grant of Probate on the “do-it-yourself” Will, based on concerns regarding the execution of the Will and alleged undue influence. Attwood Marshall Lawyers Estate Litigation Senior Associate April Kennedy discusses the circumstances causing these concerns and how aged care professionals can prevent these situations from arising.
Background
It is common for aged care professionals to form close bonds with the residents they care for. It is in the very nature of the work being performed that a person develops such bonds and affection. Aged care residents generally enter a care facility when they are facing a decline in their health and are extremely vulnerable, relying heavily on those who care for them each day.
It is understandable that residents grow fond of those that care for them and often want to give a gift to their care providers to show their gratitude. However, gift-giving between aged care residents and care providers is a grey area and the lines can be blurred as to what is appropriate.
However, there are more serious cases where workers may take advantage of a vulnerable person and seek to gain financially from their patients, exploiting them in the absence of any family or friends who can put a stop to such behaviour. We will discuss a recent case of this nature in this article.
The Nurses and Midwifery Board Code of Conduct allows nurses to accept nominal gifts. Although, without proper definition and control, the line between a small gift, such as flowers, and more valuable gifts, such as money or property, can be confusing.
A case of undue influence
A 92-year-old gentleman, Lionel Cox, entered an aged care facility in Victoria after his health deteriorated to a stage where he required assistance in every aspect of his life.
Mr Cox had no living relatives. He was isolated, vulnerable, and completely dependent on his carers.
On the first day he was admitted into care, he met with an aged care nurse, Ms Abha Anuradha Kumar, who he shared his background with and the fact he had no family, he owned his own home, and he had not yet made a Will. Ms Kumar was the manager of the aged care facility.
After learning about Mr Cox’s valuable estate and lack of any beneficiaries, Ms Kumar purchased a “do-it-yourself” Will Kit and presented it to Mr Cox, persuading him to make her his sole beneficiary in the absence of any relatives.
Several weeks passed, and shortly after executing the “do-it-yourself” Will, Mr Cox passed away. At the time of his death, Ms Kumar had only known the patient for approximately 24 days. Ms Kumar was then able to liquidate her former patient’s assets, which held a value of more than $1 million.
Professional misconduct
It was Mr Cox’s neighbours and friends who rallied together and reported Ms Kumar’s conduct to the Nursing and Midwifery Board of Australia (the Board) which resulted in the Board making an application to the Victorian Civil and Administrative Tribunal (VCAT) against Ms Kumar.
During the process, the aged care nurse admitted to three of the allegations of misconduct made against her.
It was claimed that on the day of Mr Cox’s passing, Ms Kumar instructed another employee to locate Mr Cox’s house keys whilst his body remained in his room. Ms Kumar eventually obtained probate of the Will, sold Mr Cox’s house, and kept the proceeds of $1,117,000, in addition to around $36,000 in cash and personal items worth around $3,000.
The Board ruled that Ms Kumar had engaged in the ‘most serious’ category of professional misconduct.
As a result, the Board banned the nurse from being a registered health practitioner and disqualified her from working or volunteering in any aged care capacity for five years.
Unfortunately, the Tribunal could not strike down the Will because they lacked jurisdiction.
On 8 August 2021, Ms Kumar was served with a “summons for revocation” from lawyers representing State Trustees Victoria, forcing her to attend before the Court in respect of the deceased estate of Mr Cox.
The hearing of this case is still pending. It calls attention to the vulnerability of aged care residents and the potential for them to be the subject of undue influence.
Execution of the Will
The State Trustees of Victoria reviewed the circumstances surrounding the making of Mr Cox’s Will and claimed that it was not compliant with legislation.
The reasons for this were as follows:
- Ms Kumar was present during the signing of the Will
- One of the witnesses had expressed their distress at being requested to sign and witness the Will, but was ultimately encouraged by Ms Kumar to proceed
- Ms Kumar concealed the contents of the Will, which showed that she was named the sole beneficiary, when presenting the document to the witnesses to be signed, only allowing the signature section of the Will to be visible
- When one witness observed that Ms Kumar was concealing the contents of the Will, Ms Kumar stated that the contents was not relevant and that they only need to observe the signing process as a witness
- One of the witnesses claimed they didn’t see Mr Cox sign the Will; and
- Both witnesses signed the Will on the second page. However, their signatures were also replicated on the first page.
The State Trustees’ lawyers claimed that it was not consistent with the deceased’s natural affections or moral duties to bequeath his estate to someone whom he had met less than a month before making his Will.
This case raises concerns about the need for greater protection of the elderly, and laws in all states and territories that prevent health professionals and carers from becoming executors, beneficiaries, or witnesses of their patients’ Wills and other important legal documents. In the absence of appropriate legal protections nationwide, vulnerable people may be susceptible to undue influence or unconscionable conduct.
Legislative controls
In 2015, the Victorian government introduced restrictions prohibiting aged care workers and health providers from being named attorneys in fiscal matters concerning people under their care in the state. Comparable provisions are also in place in Queensland but not in other states or territories. However, no restrictions are in place that prevent aged care workers and health providers from being appointed as executors or inheriting benefits under a resident’s Will.
Considering the risks and lack of comprehensive legislative controls, it is prudent for aged care providers to have clear policies and procedures concerning when, or even if, aged care workers are permitted to accept gifts from residents. Aged care providers may also consider banning nurses and other care providers from acting as executors of a resident’s Will. Additionally, providers may establish procedures for referring residents to independent third parties when they have no friends or family who can act in this capacity.
Avoiding undue influence
Undue influence occurs when there is inequality of power between two parties in a relationship. Concerning elder law, this is most frequently seen when an elderly vulnerable person creates an essential legal document such as their Will or Enduring Power of Attorney (EPOA) in response to the influence of someone close to them. In such cases, the elderly person is encouraged to include the person exerting their influence as a beneficiary in their Will or appoint them as their attorney in the event they lose mental capacity and can no longer manage their own affairs.
Undue influence can be difficult to prove. In all instances, it is best to obtain appropriate legal advice when executing important legal documents to mitigate the risk of undue influence and ensure the person signing them understands the nature and effect of the document they are making.
Attwood Marshall Lawyers – helping minimise the risk of undue influence when constructing a Will
It is essential to seek immediate advice if you have concerns about the validity of a person’s Will. After that person passes away, there is a very brief window of opportunity to take the necessary steps to challenge the validity of the Will. Disputing a Will can be a complicated process, and it is essential to seek counsel from a lawyer who specialises in this complex area of law.
Attwood Marshall Lawyers have one of the largest Wills & Estates departments in the country, which is comprised of dedicated lawyers who solely practice in estate planning and estate litigation.
If you require advice concerning the validity of a Will or a dispute over an estate, please contact our Estate Litigation Department Manager, Amanda Heather, on 07 5506 8245, email aheather@attwoodmarshall.com.au or phone 1800 621 071 to find out what steps you need to take action.
Read more:
An accusation of undue influence: Legal battle ensues after doctor emerges as major beneficiary of patient’s $30 million estate
Undue influence and unconscionable conduct in Will-making is elder abuse and is a serious issue
Challenging a Will on the Grounds of Undue Influence or Suspicious Circumstances
