Author Archives: Brian Herd

About Brian Herd

Recognised as one of the leading experts in Australia on elder law, aged care, retirement, estate planning and disability and a regular author, broadcaster and popular presenter on many elder law subjects and issues.

Why doesn’t anyone whistle anymore?

Remember the song “Whistle while you work”? It was made famous in ‘Snow White and Seven Dwarfs.’

When I was young, I also remember that lots of people around me whistled. They whistled in the street, on the tram, the trolley bus, in their car and, yes, at work. Some were very good, some were very bad. Some even whistled at girls, perish the thought. For those not blessed with the whistle gene, a rhythmical hum would usually suffice.

In the end, it didn’t matter, it was a sign of cheeriness and happiness and, sometimes, it was infectious.

Without wanting to sound like a grumpy old man, I can’t remember the last time I heard someone whistling in the street. Instead of walking down the street with a song in our head and on our lips, we now prefer to bow in studied silence to the irresistible sight and sounds of our IPhone. That’s life in the digital age.

But there is another form of whistling that is quite contemporary and even controversial. It is not, however, a portent of happiness. It’s called Whistleblowing – wanting to help a person by telling an authority about someone who has done the wrong thing to that person.

Culturally, we are attuned to not telling on others or ‘snitching’. Legally, (and broadly speaking) we aren’t usually required to tell on others. As a corollary to that as well, the law doesn’t even require us to help others who may need it. We have no ‘duty to rescue’. So, if I was floundering in the Brisbane River one night waving my arms and shouting forlornly, ‘Help Help!’, and you were walking past, you would be quite entitled to ignore me, keep walking and quietly mumble to yourself, ‘Sorry, your time has come.’

That is all very regrettable in certain spheres of human life. I speak of Elder Abuse.

As so much of it is hidden behind doors, curtains or passwords, it is difficult to identify. In many cases, the victim is either unable to complain, or reluctant to. However, some of the best placed people to discover it and do something, are right next door to it – neighbours. Of course, their proximity to the problem creates a conundrum – what will be the consequences for me, and what will my life be like, if I blow the whistle.

Fortunately, our lawmakers have grappled with this problem, to some extent. Provided you have a reasonable basis to blow the whistle, in Queensland, we have a law which protects you from any legal consequences including defamation or other adverse legal consequences.

That can help in making the crucial decision whether to speak up or not. It will never be total protection. It then becomes a moral question for you – is the cost of silence greater than the cost of disclosing?

As usual, the best way to judge that is to get legal advice before deciding.

In the meantime, stay happy, wet the lips and start whistling (or humming).

What is a Death Doula?

Some years ago I wrote about an unusual occupation – a music thanatologist – someone who plays music to the dying. The preferred instrument of choice is, apparently, the harp.

While technology spurs all sorts of creative businesses and services to facilitate our daily lives, death and dying also seems to be spawning discrete services just like the music thanatologist.

Some of you may have heard of a ‘Doula‘. It is a Greek word meaning ‘a woman’s servant’. Traditionally, they were women who provided what is described as non-medical support, information and assistance to other women during birth and the post-natal period. They are more commonly called ‘Birth Doulas’

However, in very recent years we have seen the development of ‘Death Doulas’. They assist in the dying process just as they do in the birthing process. Their services include creating death plans and providing spiritual, psychological and social support before and just after death. So new is the service that the international organisation, the ‘International End of Life Doula Association’ was only founded in 2015. Its mission statement states they are “dedicated to bringing deeper meaning and greater comfort to dying people and loved ones in the last days of life”.

We don’t often raise our consciousness about the importance of facilitating or easing the mental anguish involved in the process of dying and the acceptance of death, both for ourselves and our families. It tends to be more a clinical event.

Death and dying for most of us is a new experience, I wonder whether you, or me, would appreciate the assistance of a death doula?

I just want to go home

Very few people want to stay in a hospital or an aged care facility.

However, we often hear of hospitals complaining about ‘bed blockers’ – they’re usually referring to older patients for which the hospital says they can do no more but the patient won’t, or can’t, leave the hospital. This arises usually where, for example, the patient is not able to go home and the family needs to frantically find some aged care facility or respite care as an alternative.

I have sympathy for the hospital and the patient in this situation. I do find it difficult to sympathise as much with the family who have usually done nothing to anticipate this event.

There is a concerning variation on this theme developing – where a hospital does not want an older patient to leave and go home even though the patient wants to, as do their family. The hospital strongly believes that, while the patient can leave, they can only go to one place – a nursing home.

We had a recent example of just this scenario. A hospital, in effect, would not let a patient leave unless it was in the back of ambulance on its way to an aged care facility. What’s more, they told the patient and their family that, if they did attempt to ‘retrieve’ the patient from his bed and take him home, they would call the police. As both the patient and his family, including his enduring power of attorney, were adamant that he would be leaving, I am not sure what offence either the patient, or his family, were allegedly committing.

I have no doubt the hospital was well intentioned and truly believed that their duty of care to the patient not only applied in the hospital but outside the hospital as well.

Regrettably, I call this an emerging ‘clash of the titans’ issue in ageing – what’s good clinical care may not actually be what the patient wants nor, indeed, what the law prescribes.

So what does the law say? It says:

  1. If a person has the capacity to make their own decisions, they are entitled to do so which includes leaving a hospital even where the clinical indicators suggest they should not;
  2. If a person does not have the capacity to make their own decisions, whether the patient stays or goes, becomes a decision for their Enduring Power of Attorney
  3. A hospital has no power to restrain a patient from leaving. To do so against the patient’s wish or that of their EPOA, could well result in the hospital committing an offence e.g., assault or deprivation of liberty
  4. If a hospital has significant concerns about a patient leaving or the appropriateness of a decision by their EPOA to take the patient home, it can raise its concerns with the Public Guardian or QCAT.

This is not a simple case of ‘goodies and baddies’. It is more complex. While the law may be counter-intuitive to what we think is best for someone and their decision to leave their hospital bed and go home might be silly, the law says most of us are entitled to be silly.

Play it again Santa

With my 2 ‘ooh aah’ daughters unavailable and pursuing ‘other interests’, I have not been able to produce another Christmas message this year. Barring any unexpected celestial transfer before then, we will return next year bigger, brassier and bolder than ever – stay well till then and feast your eyes and ears on last year’s message just once more.

All of us at CRH Law wish you health and happiness at Christmas and far beyond.

 

Dear Lawyers – A little birdie told me something

For all you lawyers (and even financial advisers) out there who occasionally dip their little finger to taste that fine vintage known as elder law, beware.

A little birdie recently told me that the next possible target of attack on lawyers’ competence and professional standards will be those who draft family agreements or what are also known as granny flat arrangements. They are becoming increasingly popular in families as a way of avoiding the spectre of aged care facilities for older people. They are also riven with complexities not the least of which are CGT tax implications, Centrelink rules and family dysfunction. Although I am pleased to see the recent Federal Government announcement that the tax implications of granny flat arrangements have been referred to the Board of Taxation for review.

These family arrangements can also result in the sudden enrichment of a family member where the arrangement ends prematurely due to the early death of the elderly parent or their transition into aged care.

It seems that, recently, there have been a number of these agreements that have unravelled disastrously, due, in no small measure, to the poor drafting of the agreements by these sometime lawyers. This is often the result of a lawyer’s inexperience in the area and a lack of the necessary background to address the ‘what ifs’ of the agreement. Regrettably some of it may also be the result of a relative over-confidence reflected in the thought –’How hard can they be?’

I am told the impending assault will be on 2 fronts:

  1. Professional negligence in the drafting; and
  2. Unprofessional conduct in acting for all parties or failing to appreciate the ethical minefield these arrangements represent for lawyers.

Without seeking to put the wind up those lawyers wanting to do these often valuable and useful agreements, they do require some expertise and experience which may well be worth obtaining before you dive in too far.

Smile! – Not in my bedroom (or ensuite)!

As a way of addressing concerns about the quality of care in Aged Care, there has been a recent public push for the installation of CCTV in resident’s rooms in Aged Care Facilities. Just last week, for example, a Bill was introduced in the South Australian Parliament for just that purpose. I have no doubt it will be a front and centre issue in the Royal Commission as well.

Installing CCTV in a resident’s room would require the request or consent of the resident. Many residents will not be able or capable of doing so because of mental incapacity. They won’t even be able to say no.

Regrettably then, if this groundswell succeeds, many a request or consent for the installation of CCTV in a resident’s room will come from their family and, more particularly, the resident’s enduring power of attorney. Of course, they will not be living in the facility and, according to recent research, they will almost always want it installed.

It got me thinking. Maybe we should be having another look at our Enduring Power of Attorney document. It might be worthwhile considering inserting a clause in it saying something like, “If I lose my capacity, under no circumstances will my attorney request or consent to the installation of any CCTV or other recording device, in any room I occupy in an aged care facility.”

Matter of fact, I think I will change my own Enduring Power of Attorney now to do just that.

To all you elder abusers out there

You probably know how the law is supine as a tool for pursuing your abuse or even in discouraging it. As a result, you mostly get away with it. You have a sense of immunity emboldened and inoculated, ironically, by the inertness of the law itself.

So here’s a thought.

What if:

  • We had a criminal offence called financial exploitation of the elderly (which we don’t have)
  • It was defined to mean when a person in a position of trust and confidence knowingly obtains control over an elderly person’s property by means of deception or intimidation for their own personal profit

But here’s the best bit. What if

  • That same law said that if you are convicted of such an offence, you would be prevented from receiving any inheritance on the death of your mum or dad.

Might just make you think twice or would it?

Laughing and Learning

I have been giving presentations to older peoples’ interest groups and organisations for a long time now. They tend to target what I call ‘later life issues’ particularly those aspects of our lives we tend to want to avoid as the future gets closer, if not clearer.

My approach is to make the presentations both informative and entertaining  – I call it laughing and learning and the topics draw on my vast experience as an elder lawyer acting for older people. They usually only go for about 30-45 mins with time for questions.

Here’s a brief portfolio on some of them:

  • “New Twists on Family Planning”
    • How getting older (more mature) gives rise to all sorts of later life demands which the law gives us the ability to plan for and, because our families take such an interest in this phase of our life, it is all a bit like latter day family planning. Topics include  getting motivated, enduring powers of attorney and advance health directives.
  • Later Life Lifestyles”
    • More and more of us are transitioning in retirement (and more than once) from our own home to other smaller congregate style of living from retirement villages, manufactured home parks, assisted living, aged care, granny flats and NORCS. This provides a brief rundown on the options and the financial and legal implications
  • “Later Life Relationships
    • Singlehood will befall many of us in later life. Many of us have to fight the scourge of loneliness and isolation. This presentation looks at what older people are doing to confront this in creating new relationships and what the financial and legal implications are.
  • Good Will/Bad Will/No Will – Does it matter?”
    • This is a passionate subject for me and a ‘call to arms’ as I have witnessed the disastrous financial and emotional consequences for families where this ubiquitous document has been either ignored, done badly or not at all or simply can’t be found. It examines by way of examples, the good, the bad and the ugly of Will-making.
  • Doing Nothing – the Legacy of Lethargy”
    • Australians are really good at doing nothing about the future and this presentation is an eye opener about the consequences of this approach both while we are still alive and then on our celestial transfer. It tends to make people wake up, get up and do something.
  • “Aged Care – What does it really mean”
    • In later life this may become a reality for some of us. The aged care system in this country is complex, does not permit of ‘oops’ factors when it comes to decisions we make and it is not free. What are the options, what does it cost and what effect does it have on our relationships, families, finances and future.
  • “You and your Family in later life”
    • There is no doubt that life can come a full circle in later life where our children become more like our parents as we were for them in earlier days. This presentation addresses the scenarios that can arise along with the tensions and influences that you will have to grapple with and how the law can help.
  • “The Law of Dementia”
    • If we get past 85 the likelihood of contracting this condition increases exponentially. What can you do to plan for this, both in terms of your relationships and your family and how can you avoid the scourge of elder abuse.

If any of these or any other topics should interest you and your organisation, please don’t hesitate to contact me – you might just learn something for free and, even better, do something about it!

Trump on elder law

On any definition, Donald Trump is one – an elder.

We are attuned to expect the unexpected and sometimes offensive tweets from him mixed with self-proclaimed good news for some and bad news for others.

Recently, however, Trump signed into law the Senior Safe Act. The new law, with bipartisan support, extends immunity for individuals working in financial institutions (including banks) for disclosing suspected financial exploitation of an older person provided those individuals have received training on the signs of financial exploitation and the institution has implemented proper reporting procedures. The purpose of the law is to overcome the restrictions imposed by privacy laws.

Financial peak bodies in America generally praised the legislation. The Financial Services Institute, for example, commented:

“We applaud President Trump for signing the Senior Safe Act into law and providing seniors additional protection from financial abuse. Preventing elder financial abuse and increasing protection for seniors has been among FSI’s top priorities for several years. Financial advisors and financial services firms are often the first to detect possible financial abuse, so it is critical that they have proper training to identify potential abuse as well as the ability to report it without fear of violating privacy laws. After years of strongly advocating on this issue and working closely with members of Congress on the Senior Safe Act, we are glad to see this critical legislation signed into law.”

Yet, in what was universally regarded as good news for the elderly in the USA, Trump signed the legislation no doubt with his usual exaggerated hand flourish but with no fanfare, no signing ceremony, and, most surprisingly, no tweet. Perhaps he was in a state of subliminal denial not wanting to draw attention to the fact that the new law applied to him just like any other elder. It may also be related to his aversion to potentially having his financial affairs exposed to public scrutiny if, perish the thought, he should become a victim of elder financial abuse.

And in Australia?

Regrettably, we don’t have any such legislation let alone any robust discussion among financial institutions on the subject of mandatory reporting of elder financial abuse. The best we can get is a collection of motherhood statements in such places as the new Banking Code of Practice which comes into force on 1 July 2019. In Chapter 14 it states:

“We are committed to taking extra care with vulnerable customers including those who are experiencing…elder abuse and financial abuse”

As any politician would agree, there’s nothing like a good commitment to go that extra mile. That should fix the problem, shouldn’t it?