Supporting an Ageing Parent Through Estate Planning: Capacity, Influence, and Your Role as Family

When families revisit their estate planning, one of the most sensitive questions that arises is whether an elderly parent still has the capacity to make decisions freely — and whether anyone around them might be exerting undue influence. These concerns aren’t just legal technicalities; they go to the heart of dignity, autonomy, and protection.

Understanding the legal landscape helps families support their parents without overstepping, while also safeguarding them from potential abuse.

Decision‑making capacity: What it really means

Capacity isn’t an “all or nothing” label. In Australian law, it’s task‑specific and decision‑specific. A parent may be perfectly capable of choosing where they want to live, yet need support understanding the implications of a complex trust structure.

Key elements of capacity include:

• Understanding the decision and its consequences
• Retaining the information long enough to decide
• Weighing the options
• Communicating a choice

Capacity can fluctuate — illness, medication, stress, or even time of day can affect it. That’s why assessments are based on the parent’s abilities at the time the decision is made.

Undue influence: When support crosses the line

Undue influence occurs when someone pressures, manipulates, or coerces another person into making decisions that don’t reflect their true wishes. It can be subtle — a caregiver hinting they “deserve” to be included in the will — or overt, like isolating the parent from other family members.

Warning signs include:

• Sudden changes to wills or powers of attorney
• A new “friend” or helper becoming heavily involved in financial matters
• The parent appearing fearful, confused, or overly deferential
• Restricted access to the parent

Undue influence is a form of elder abuse, and courts take it seriously.

Elder abuse risks: Why estate planning moments matter

Estate planning is a prime moment for abuse because:

• Assets and control are being discussed
• Parents may feel vulnerable or dependent
• Family tensions can surface
• Outsiders (paid carers, neighbours, acquaintances) may see an opportunity

Being proactive is the best defence.

How families can support an elderly parent — without taking over

Your role is to empower, not override. Here are practical steps:

• Encourage independent advice — A solicitor should meet with your parent alone to confirm their wishes and assess capacity.
• Document everything — Notes, letters, and medical assessments can help protect the parent’s decisions from later challenges.
• Promote transparency — With your parent’s consent, keep siblings informed to reduce suspicion and conflict.
• Support, don’t steer — Ask open questions, avoid suggesting outcomes, and let your parent express their own priorities.
• Watch for red flags — If someone new is suddenly involved in financial decisions, gently check in.
• Encourage regular reviews — Capacity can change, and so can circumstances.

If this article has prompted questions for you, or you would like to discuss your estate planning needs with one of our experienced team, please contact us on 8525 2700 or click here to request an appointment.

Article by Nicole Commandeur
Image created in Canva