Tag: Wills and Estates

There are a number of reasons why the subject of elder abuse is gaining more traction with politicians and getting more coverage in the media at the moment. No doubt two of the main reasons Australians are beginning to take notice of this growing problem are: (a) Australia’s ageing population means that more and more old people (with more and more wealth) are at risk of abuse; and (b) the legal and social policy gaps in targeting this growing issue are becoming more and more obvious and difficult to ignore.

When I was given the opportunity to attend the ‘National Elder Abuse Conference 2018: Together Making Change’ I was thrilled for the opportunity, given that the majority of my clients are over the age of 65.

A few of the key legal issues in recognising and addressing elder abuse in a solicitor’s day-to-day legal practice include:

1. Assessing Capacity
2. Considering Undue Influence
3. Ruling out Conflict of Interest

Any one or all of these potential issues (and more) might arise when faced with taking instructions from clients, often presented by their children, wanting to make Wills or Enduring documents (Power of Attorney and Appointment of Enduring Guardianship).

Estate planning lawyers are obligated to ensure our clients have the mental capacity to give instructions to make a Will or Enduring documents (“testamentary capacity”). ^[1] In addition, we are encouraged to consider undue influence (even if just to dismiss it).^[2]  Finally, it is important for us, as it is with any lawyer, to always assess “Who do I represent?” in order to avoid acting in conflict with our client’s best interests.^[3]

The National Elder Abuse Conference 2018 was comprised predominantly of short presentations and panel discussions about current issues and was geared largely towards social and economic policy development.  The main legal focus of the conference was on those legislative reforms needed to reduce the occurrence of elder abuse and to better address and punish instances of it when it occurs.  Two areas of legislative reform of particular relevance and interest to practising solicitors are:

1. Establishing a National register of Enduring documents; and
2. Criminal law responses to financial and other types of elder abuse.

National Register of Enduring Documents

The idea of a national register for Enduring Documents is one that has been around for some time,^[4] and is finally gaining momentum in the legal context.  For example, in June 2017 the Australian Law Reform Commission recommended that there should be a three-step process, whereby the enduring appointments made by residents of all Australian states and territories become unified under the following:

1. An agreement on nationally consistent laws governing personally appointed substitute decision makers;
2. A consistent national model of enduring documents; and
3. A national online register of enduring documents, and court and tribunal appointments of guardians and financial administrators.^[5]

In recent times there has been a strong push from the banking sector, academics and elder rights groups for the establishment of a nation-wide electronic database recording all existing Power of Attorney documents.^[6] While  it is possible that the changes, once implemented, may mean an increase in administrative tasks for staff in the banking industry, health-care workers and private practitioners, there is no doubt that all Australians would benefit from more effective regulation and policing of the use and abuse of power of attorney documents.

Policing Financial and other Forms of Elder Abuse

During the 2018 Conference The ‘Elder Abuse and Policing: What is Best Practice?’ Panel invited high-status members of the NSW and Victorian Police force and key community groups to discuss their current practices and limitations in their responses when faced with situations where they suspect abuse of an elderly person.^[7] The panel gave a number of examples of elder abuse including situations of neglect, instances of children or carers misusing power of attorney appointments, and other behaviours that fall within a broader definition of abuse than that currently prohibited or protected against under the current criminal law.

In its recent report on elder abuse the Australian Law Reform Commission stated:

In all Australian jurisdictions, there are offences that broadly relate to fraud, deceptive conduct, stealing and other property related offences. In certain circumstances, some of these may be applicable to cases of financial abuse of older people, including in respect of abuse of powers of attorney. In Victoria and Queensland there are a range of offences specifically relating to powers of attorney. The ALRC is unaware of any prosecutions under these provisions. ^[8]

At the end of the ‘Policing: Best Practice’ discussion the floor was opened for questions and Queensland Principal Solicitor Brian Heard asked: “Do you think the current level of data and the current legislation does enough to criminalise and target and address the problem of financial elder abuse?” NSW Detective Superintendent Robert Critchlow provided a very eloquent and honest answer (to paraphrase: “No and no”) and pointed to the work of one Rodney Lewis, Solicitor.^[9] Lewis has had a significant impact in the area of elder law, stating:

Even allowing for the ALRC recommendations there will remain gaps into which victims of elder abuse will continue to fall. We need a coherent statute adopted by States and Territories in a cooperative legislation scheme, to provide a focal point for the victim, their family, community and government support. It will include remedial and restorative justice measures which are affordable and mandatory when necessary for the perpetrator. Until we criminalise elder abuse in many of its forms, to address the just claims of our vulnerable elders, we cannot without significant legal risk and expense restore financial loss, let alone resolve the residual anguish, especially within the family.^[10]

Practising in this area when those well-needed legislative and policy changes come through will be exciting. While it may still be some years away, hopefully following the 2018 conference we will see some positive progress from politicians and eventually the legislature. Elringtons will be at the forefront of addressing those changes when they finally come through.

For more information please contact:

Our Wills and Estate Planning planning team:

p: +61 2 62061300 | e: info@elringtons.com.au

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[1] Regarding the traditional test for determining testamentary capacity, see Banks v Goodfellow (1870) LR 5 QB 549; For comments that legal professionals need to be aware of circumstances which give rise to issues of capacity assessment see Legal Services Commissioner v Ford, [2008] QLPT 12, Unreported, Fryberg J, 22 August 2008
[2] Ryan v Dalton; estate of Ryan [2017] NSWSC 1007 at 107 per Kunc J

[3] Reilly v Reilly [2017] NSWSC 1419

[4] Parliament of Australia, House of Representatives, ‘Standing Committee on Legal and Constitutional Affairs Report Older people and the law’, 2007, ISBN 978-0-642-79014-9 (HTML version) and Keast, Jackie, ‘Lack of National Register Leaving Banks Unclear on Power of Attorney’, Australian Ageing Agenda, July 24, 2015

https://www.australianageingagenda.com.au/2015/07/24/lack-of-national-register-leaving-banks-unclear-on-power-of-attorney/

[5] Recommendation 5-3, Chapter 5 ‘Enduring appointments’, Australian Law Reform Commission, ‘Elder Abuse, A National Legal Response, June 2017

[6] University of Western Sydney, Cognitive Decline Partnership Centre, Council on the Ageing (COTA) NSW, “NHMRC Partnership Centre On Dealing With Cognitive And Related Functional Decline In Older People (Cdpc) Final Report: The Policies And Practices Of Financial Institutions Around Substitute Decision Making”, Annual Report 2014, https://sydney.edu.au/medicine/cdpc/documents/contact/2014-annual-report-summary.pdf

[7] Video available online at http://togethermakingchange.org.au/videos/ “Elder abuse and policing: what is best practice” (Brian’s question is at 44mins)

[8] ‘Criminal Justice Responses’, ALRC Elder Abusereport 2017, p. 365

[9] Video available online at http://togethermakingchange.org.au/videos/ “Elder abuse and policing: what is best practice” (Brian’s question is at approximately 44 mins)

[10] Lewis, R “Fill the gap in elder abuse responses with an Elder Justice Law”, National Elder Abuse Conference 2018: Together Making Change, and “Elder Law in Australia”, Launch, Parliament House, Sydney, NSW, 4 April 2012  http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/Pre-2015%20Speeches/Bergin/bergin_20120404.pdf

As well as being “of sound mind” or having testamentary capacity to make a Will, a will-maker (also known as a “testator”) must also be an adult. That means your teenager’s threat of disinheritance scribbled on a napkin will not be legally binding – phew! But what if you do want to make a Will for a young person?

In special circumstances, a person under the age of eighteen years may be permitted to make a legally enforceable Will. For example, the child may have inherited a large sum of money from a relative, or, the child may have received a personal injury payment.

Legally, the only way to make a Will for a person under the age of eighteen years is to make an application to the Supreme Court under the Succession Act 2006 (NSW).^[1]  The requirements for making an application to the Supreme Court for a minor Will include:-

1. The will-maker must be under 18 years of age and represented by a legal guardian;
2. The minor will-maker must understand the nature and effect of the proposed Will;
3. There must be reasonable circumstances that would permit the Court to make an order allowing the minor to make a Will, such as:

(a)    It would not be appropriate, if the minor was to die without a Will, for their estate to be distributed to those entitled under the usual intestacy laws (e.g. where there is no Will the estate will go to the spouse or children of the deceased first, then to the parents, then siblings, then grandparents, then other relatives); or

(b)    There are no living relatives.

4. Those parties affected by the application must be served with notice of the application (i.e. anyone excluded in the minor will-maker’s proposed Will who would be entitled to the minor’s estate under the intestacy rules must be made aware of the application)

It is also possible for the ACT and NSW Supreme Courts to permit a Will to be made for a minor who does not have testamentary capacity.^[2]

If you believe you or a young person under your care requires a Will, elringtons, with its team of dedicated lawyers, is here to assist. Please contact one of our friendly solicitors on 02 6206 1300 or info@elringtons.com.au to discuss at your convenience.

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[1] Section 16 Succession Act 2006 (NSW)

[2] Section 16A Wills Act 1968 (ACT) and Section 18 Succession Act 2006 (NSW)