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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 42659
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Some 6 months ago my elderly parents after pressure from my

Customer Question

Some 6 months ago my elderly parents after pressure from my 51 year old, drug adicted brother, allowed him to return to their home. My father subsequently died and my brother then bullied my mother into giving him large amounts of money. She is 86 and has become very frail both emotionally and physically and for her safety she has been forced to move out of her home and has been staying with my sister for the past week. However this arrangement cannot go on indefinitely and she needs to move into assisted care. Unfortunately she will need to sell her home to finance the move and associated on going costs. My brother is refusing to leave the house. What can we do to evict him?
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.

Good Morning

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

Do you have a power of attorney for your mum and is she able to give instruction?

Customer: replied 1 year ago.
Hi Leon. No we don't have a POA. While she is emotionally frail I believe she is capable of giving instructions
Expert:  Leon replied 1 year ago.

Good Morning

I suggest you get a POA and then you issue your brother with an eviction notice and if he refuses then you will have to go to court and get an order.

Customer: replied 1 year ago.
The solicitor we consulted said that we couldn't evict him because he was a "dependent ". I don't understand why we need a POA, unless this is to save my mother the hassle of going to court herself. As for "going to court and getting an order",what court and what order? I presume from your biog that you practice is NSW, we live in Victoria so please frame your answer with that jurisdiction in mind. Sue
Expert:  Leon replied 1 year ago.

Good Morning

If she has to sell the house to go into a nursing home, he has no choice but to leave.

If you mum is happy to do this on her own you dont need the POA., But if she is frail and elderly she is not going to want to go to court.

Expert:  Leon replied 1 year ago.

The laws are similar in all states.

Customer: replied 1 year ago.
but what court do we apply to and what type of order?
Expert:  Leon replied 1 year ago.

You would file it in the Magistrates court

I do not believe VCAT has jurisdiction as he is not a tenant.

But all this has to be done when you mother has to move. You will have difficulty getting him out until then.

Also if he is harassing and intimidating her to get money you may consider an intervention order and also have yourself placed as a co-signatory on her accounts so that she cannot get money out without your signature.
I hope this all makes sense and is of assistance. If there is nothing further

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon

Customer: replied 1 year ago.
Would it make our case better for my mother to move back to her home, perhaps with another family member there to protect her. We are concerned, and the solicitor we consulted said the courts might view the fact that she has somewhere else to live and that if my brother is evicted he does not, that they will not give us an eviction order as he would be classed as a dependent
Expert:  Leon replied 1 year ago.

Good Morning

I thought she was living in her home. Where is she at the moment?

Customer: replied 1 year ago.
She is staying with one of my sisters but this can only be a temporary measure.
Expert:  Leon replied 1 year ago.

Good Morning

Why did she move there, was she isn fear of her safety?

Customer: replied 1 year ago.
My brother was bullying her for money and he also interferred with her phone so we couldn't contact her. She is 86, weighs 47 kilos and has just lost her husband and although we dont believe he physicaly abused her he certainly did mentally. Her mental and emotional health suffered to the extent she had to leave as she couldn't take his abuse anymore. Since our first conversation I have spoken to both VCAT and the Magistrates courts. Both say they can't issue an eviction notice.
Expert:  Leon replied 1 year ago.

Good Afternoon

She should notify the police about this and give them details.

While she is not there they will not do anything.

If she fears going back to her home, and he is an addict then the police should get involved. but she has to set out what his behaviour is like. If he yells at her and she is fearful then they should take out an intervention order against him. If she wants him out to return to her home then they can have the court issue that order.

Customer: replied 1 year ago.
Thanks my understanding is that the police really won't do anything. However I'll call them. Thanks for your help
Expert:  Leon replied 1 year ago.

Good Afternoon

If she fears for her safety they should act.

Good luck and all the best

You are very welcome and thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon