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.

How can you make your adult children behave themselves?

There is an apocryphal story about a woman who included the following clause in her Will:

To my son-in-law I bequeath the sum of $2.00 and express the wish that he apply those funds towards the purchase of a stout rope with which to hang himself.”

It is usually not a good idea to express your feelings in your Will no matter how earnest and passionate they may be. However, for those determined to do so, there is some satisfaction in knowing you cannot be sued for defamation as, when your feelings become known, you are ‘out of the jurisdiction’ as the law would say.

The law is strewn with parents’ obsessive, but fruitless attempts to control their families and their flaws from above– a form of heavenly behaviour control reflected in a parent’s inability to let go.

But if your Will can’t help you obtain some testamentary justice, is there something else that can? I speak in particular about obtaining justice for yourself, post death.

There is an ancient rule of law known as the forfeiture rule. Put simply, if you murder your mother, you are not entitled to receive any benefit under her Will – you are disinherited.

What if we extended that rule into the area of Elder Abuse?

In the US State of Illinois, for example, a specific criminal offence of ‘financial exploitation, abuse or neglect of an elderly or disabled person’ exists. That law goes on to say that, if anyone is convicted of such an offence, they shall be precluded from inheriting anything from the estate of the person they abused.

There are 2 schools of thought on this law:

  1. It would be a significant disincentive to elder financial abuse; or
  2. It would be a significant incentive to elder financial abuse on the basis that it is best to extract everything from the person that you can, before they die, so there is no inheritance for you to lose after they die.

I am an advocate of the first school of thought.

Where would you sit on this?

An Elder Abuse Suspicion Index

Have you noticed how many aspects of our lives are governed by that pervasive, statistical concept known as an ‘Index’.

Just a smattering of some of the more conventional ones include:

  • Consumer Price Index (CPI)
  • A Book Index
  • Stock Market Index
  • Futures Index
  • Consumer Sentiment Index

One exotic one I came across recently was the “Masculinity Index”. It purports to assess, for what it is worth, the extent to which traditional masculine values, such as competitiveness and the acquisition of wealth, are valued over what are regarded as feminine values, such as building relationships and the quality of life.

Now the ubiquitous ‘Index’ has infiltrated the world of Elder Abuse – the “Elder Abuse Suspicion Index”.

With funding support from the NSW Government, a “Toolbox for Legal Practitioners” for “identifying and acting on elder abuse” has been developed by a team from the University of Technology Sydney and Newcastle University. The Elder Abuse Suspicion Index, forms part of that Toolbox.

The suspicion index consists of 6 questions as follows:

“In the last 12 months:

  1. Have you relied on people for any of the following: bathing, dressing, shopping, banking or meals?
  2. Has anyone prevented you from getting food, clothes, medication, glasses, hearing aids or medical care, or from being with people you wanted to be with?
  3. Have you been upset because someone talked to you in a way that made you feel ashamed or threatened?
  4. Has anyone tried to force you to sign papers or to use your money against your will?
  5. Has anyone made you afraid, touched you in ways that you did not want, or hurt you physically.
  6. [For assessment by the practitioner]: Elder abuse may be associated with findings such as: poor eye contact, withdrawn nature, malnourishment, hygiene issues, cuts, bruises, inappropriate clothing, or medication compliance issues.

Did you notice any of these today or in the last 12 months?”

While the Toolbox is targeted at lawyers , it is equally useful for any other professional advisers, including accountants, financial advisers or stockbrokers. It may be just as helpful for health professionals at the front line of health care, all of whom may have to confront the vexed issue and then, what to do about their suspicions – a subject for another time.

P.S.  An online version of the Toolbox is available here: Elder Abuse Suspicion Index .  You can also view the Elder Abuse Helpline & Resource Unit website here.

Can you have too much of a good thing?

As with most things in life – never!

And so it is with Wills and Enduring Powers of Attorney.

You can have more than one Will or Enduring Power of Attorney existing happily together all at the same time. How can that be? It’s not because we love our lawyer, we’re legally greedy or just can’t get enough of these documents. It’s because you can have more than one and because there can be very good reasons to do so.

More than one Will

For those of us who live on this large island and have all our assets here, you should only have one Will no matter which state or territory you live in. It will generally be valid everywhere in this country.

However, there are people, particularly immigrants, who live here who have assets in another country. Each country will have different laws and rules about Wills. As a result it may sometimes be prudent to do a Will for that particularly country as well as a Will in this country. That will require the Will you make here to state specifically that it only applies to your Australian assets not any overseas assets.

More than one Enduring Power of Attorney (EPOA)

Because, generally speaking, every State and Territory now recognises EPOA’s done in a different State or Territory, you can now have just one which will apply everywhere in this country.

So why would you want to have more than one? Here’s a reason:

  • You are in a ‘blended family’ situation
  • As is common, you have made a Will giving everything to the children from your first marriage. You have also made a binding death benefit nomination giving all your super when you die to your second spouse. This is often how blended couples seek to achieve some fairness between ‘competing interests’ as they are called
  • You are about to do an EPOA – who to appoint?
  • Arguably, if you lose capacity to make your own decisions, anyone you appoint could also be able to make decisions about your super death benefit nomination as well as the rest of your financial affairs and, in doing so, could wreck your carefully structured estate plan – assets to the kids, super to the second spouse

One possible way to address this potential is to make two EPOA documents as follows:

EPOA No 1

  • Appoint some of your kids from your first marriage in one EPOA being careful to ensure that it excludes any power in relation to your super death benefit.

EPOA No 2

  • Appoint your second spouse in a separate EPOA and limit their power to just making decisions in relation to your super death benefit.

Many of us in the ‘blended’ family are always anxious to avoid the legacy of implosion when we die. We don’t often think about leaving a similar legacy when we are still alive but unable to make our own decisions or control our destiny.

Food for thought, if not, dare I say it, advice.

I went to an aged care facility – this is what I saw

I had been asked to see a single, elderly man who , following a fall at his home of over 30 years, had been, as they say, ‘placed’ in the facility, some one week before, by his energetic and attentive enduring attorneys .

At first sight, he looked remarkably well. He had, as he said, ‘dressed up’ for my visit and had been waiting patiently for me in the reception area. He smiled when he met me. He was ‘ambulatory’ and engaged.  In my first discussion with him, he was clearly distressed about being where he was. His small room with a single bed and shared ensuite was a little piece of Lilliput, a universe away from the lifestyle and freedom of choice he enjoyed his own home.

His enduring attorneys, perhaps well-intentioned, decided that a fall was enough to bubble wrap and hermetically seal him in the protective micro living of the facility. He won’t get up to any dangerous mischief there, such as falling, will he?

Suffice to say, after protracted negotiations, the time finally came for his release some 3 days later. I was there to facilitate his ‘discharge’ but his enduring attorneys were not. He was on his way home.

I have two reflections, in particular, on my experience with him.

The right to take risks in later life is an important part of happiness – experts describe it as the dignity of risk. Sure he may fall on his return home but he may just as easily fall in a nursing home. When it comes to where we would all prefer to fall, the answer is almost unanimous.

But the other abiding memory of my experience was the aged care facility. It took us some 20 minutes to leave the facility. It wasn’t because of any last minute hitch or paperwork. He simply needed the time to say goodbye to the staff. The hugs, kisses and affection that flowed between him and the staff was poignant – and it was genuine. He hated being there, but he loved those who were there with him.

For all the care nightmares emanating from the Royal Commission, there are some real and endearing good news stories. Most of them will probably never be told. At least I can tell this one.

Aged care providers and relationships between residents

Our ageing population presents many challenges and one that is particularly difficult to navigate is the impact of incapacity on relationships between older people and between older people and their families.  It presents unique challenges for aged care providers especially when it involves sex and questions of consent.

The issue was aired in a court decision from America in December last year*. The US Department of Health and Human Services had imposed a fine of US$83,800.00 on the owners of an aged care facility because, in the Department’s view, the facility had “inadequately addressed sexual interactions between three cognitively impaired residents”. The Department concluded that the facility’s failure to act had put the residents in “immediate jeopardy“, meaning the facility’s actions or inactions “…caused, or is likely to cause, serious injury, harm, impairment or death of a resident”.

The relevant facts were:

  • There were 3 residents involved, two men and one woman
  • Each had fairly advanced dementia and suffered from “behavioural disturbances” or “inappropriate behaviour
  • One of the men performed various sexual acts on the other man and also on the woman
  • There was no evidence that there was any objection from the other man or the woman
  • Several staff witnessed the events but did not seek to intervene except to record it in their notes
  • The facility’s policy was to allow residents to have sexual interactions and not to intervene or report it unless “a participant showed outward signs of non-consent

The facility appealed against the finding of “immediate jeopardy” and the penalty. The appeal court dismissed the appeal and, in doing so, appeared to decide that:

  • Their policy of only intervening if there were outward signs of non-consent was insufficient to determine consent particularly where there was cognitive impairment
  • The facility had taken inadequate measures to determine if the acts were consensual
  • The non-intervention policy was “misguided” and left the residents at risk

Curiously, there was no discussion about whether the conduct caused, or was likely to cause, harm, impairment or death to the participants as required by the definition of “immediate jeopardy”

In any event, it has some salutary lessons and insights for us:

  • In Australia, the first law of capacity is that a person is presumed capable of consenting to anything unless there is evidence to the contrary. It is not clear in the court case above whether this is the law of America too.
  • The case did not decide that persons with a diagnosis of dementia are not capable of consenting to sexual relations
  • What the case seemed to focus on was the failure to follow an appropriate process to determine if the participants were capable of consenting.

It also gives rise to more conundrums which stretch beyond the law and into the morality space:

  • What if the facility had undertaken a proper process to assess the residents’ capacity to consent to sexual relations and the upshot of that was that they were capable?
  • What if opinion was they were not capable?

These quasi legal/moral/care issues are complex and little credence is given to the difficulties aged care providers and their staff have to face in addressing this sensitive issue. The task of trying to balance the right of the resident to decide what to do themselves and the provider’s duty of care  is often unimaginably difficult and one for which there is often no obvious right or wrong. And, as if it couldn’t get any harder, they also have to manage the demands and expectations of the resident’s family.

There is no doubt that human touch is an essential element of happiness for our human condition particularly to ward off loneliness and depression. Most touch in aged care is clinical, it is often not affectionate. Indeed, affection in aged care, particularly for staff comes with a fear. It can not only be misinterpreted, it can be dangerous because, for some aged care scrutineers who are, perhaps not in touch, it is no less than an assault.

It is a sad day when aged care becomes an affection free zone. If I am ever a resident of a facility I would definitely want the maximum touch possible (and legal).

*Neighbors Rehabilitation Center v US Department of Health and Human Services  -7 December 2018 US Court of Appeals for the Seventh Circuit

The role of gravity in later life

Gravity has a lot going for it. It is a force for good – it keeps our feet on the ground, and enables us to sit in chairs, to lie in bed and even to keep our food down. We normally wouldn’t want to do without it.

In later life, however, it can be a force for bad. When you combine its pervasive presence with increasing human frailty, the power to resist it diminishes as we age. You then have a recipe for that ubiquitous later life event – a fall. Falling to the ground is one of the greatest fears of people in their years of fragility. It is also a common cause of death.

Apart from the use of artificial aids, the fear also leads to all sorts of body defences or personal risk management, such as a preference to sit down or to shuffle with smaller and smaller steps to ensure both our feet are grounded at the same time as much as possible. Poignantly, in what is, perhaps, more ergonomic than erogenous, it can even rekindle a relationship when older couples start holding each other up as they ambulate or promenade together. They become each other’s walker.

While falling to the ground is not good for you and gravity can be your enemy, is all falling bad for you? What about falling in love? Is it bad for you and your health? After all, at its most basic definition, gravity is when one object attracts another. The earth attracts each one of us and because its gravity is much larger than our own, it wins.

Falling in love is not usually fatal. In fact, at any age, it can be very beneficial to our health, well-being and self-esteem. For older people, much has been written in the media recently about one insidious cause of ill health – loneliness. It can lead to depression and, ultimately, death. Indeed, so significant does the UK Government perceive the ravages of loneliness that it recently created a new Government ministry – the Minister for Loneliness.

Families tend to have a less supportive view of their single mum or dad falling for someone in later life. This is can derive from a Neanderthal psychosis – “not at their age!” Alternatively, they can take on the default position of the family moral police, upholding their parents’ fidelity, forgetting perhaps that crucial part of their original marital vows – “…till death do us part”.

Others are just plain suspicious and smell a rat. They ask themselves – is it love or larceny? When an elderly man woos their elderly mother and if there is a big wealth discrepancy between them, children can often be blind to the new bright lights in their mother’s eyes and the smiles they haven’t seen for years. The children tend to see the overtures of the man as those of a lothario more interested in a financial investment than an emotional one. Not only that, a certain fear of inheritance disappointment lingers in the background of their thoughts.

It is true that this latter scepticism is not entirely without foundation. I once had a client whose mother was in a nursing home suffering from early stage dementia. She had been befriended by another male resident and the relationship was blossoming. Her mother was quite wealthy and he was quite poor. His son spotted an opportunity. Believe it or not, having made all the prior arrangements and put all the paper work together in anticipation, one day he arranged to take them both on an ‘outing’. They were taken straight to a marriage celebrant who, without any questions, promptly married them. Later that day he returned them to the nursing home for their ‘honeymoon’. The sting in this tale is that the mother had not made a Will. That meant if she died before her new husband, he (and ultimately his son) would share in her estate. My client was apoplectic and wanted to sue anyone that moved, including marriage celebrant.

That is an exception. As a matter of health and happiness, later life relationships for single older people in whatever format can be the best thing since Adam and Eve. The trick for adult children is to accept that and not to charge towards imposing an age of prohibition on their parents or to become their mum or dad’s ‘jail house keeper’. That will require a number of things, namely to:

  • Suspend their disbelief that this should not be happening
  • Ignore their fear of loss of inheritance
  • Appreciate that, provided they understand what they are doing, their parents have rights and it is a matter for them to decide how they want to live in later life

There is nothing wrong with a sense of scepticism. That can be met by trying to subtly monitor your parents’ activities as much as you can, and they will allow.

In the end, our parents’ happiness in later life should perhaps not be defined by the forces of physical gravity but more by the forces of emotional levity.

PS

In my next article I will deal with that most significant and vexing issue on this subject, both for adult children and others such as nursing homes – the mental capacity for ageing parents to engage in a later life relationship or can people with dementia fall, and be, in love?

I can’t wait to read it.

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?