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.

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?

Elder Law strikes again

A new publication entitled “Elder Law – A Guide to Working with Older Australians” has just been published by Federation Press.

Among many other distinguished contributors, I have authored the somewhat topical chapter on “Residential Aged Care Facilities and Home Care”

For more details on this essential handbook on all you need to know about law and later life, see the press release below.


The Federation Press is pleased to announce the publication of:

Elder Law: A Guide to Working with Older Australians edited by Sue Field, Karen Williams, and Carolyn Sappideen, published September 2018. RRP $120.00.

Elder Law is a book for the legal practitioners, financial advisors, allied health professionals and medical practitioners working with older Australians. It is also a comprehensive and practical book for academics teaching the elder law advisors of the future.

The book takes a multifaceted approach to the issues facing older Australians and is structured around key questions including:

  • Who will make decisions for me if I am unable to?
  • How can I record my decisions in advance so people can make decisions that align with my preferences?
  • What services are available to support me?
  • Where will I live?
  • How do I plan a secure financial future for myself and my loved ones?

It responds to these questions in 20 chapters, each written by experts who are actively engaged in the field. Chapters address issues such as: supported and substitute decision-making including substitute decision-making instruments; the roles of tribunals hearing guardianship and financial matters; the accommodation options available to older Australians and the financial implications of these choices; financial issues including superannuation and Centrelink benefits, and financial elder abuse; and older age discrimination.



Or call The Federation Press on: 02 9552 2200

Aged care and the law of roughness

For a very long time, it seems, the concept of roughness did not appear as an issue in the legal landscape.

As a topic of conversation, we may have had social discussions in parent groups about  boys engaging in rough play but that was usually held to be just ‘normal’ developmental behaviour.

In recent times, however,  roughness has taken a more prominent place in the interface between the law and acceptable conduct.

It perhaps all started in the 1990’s in South Australia when a husband was on trial charged with raping his wife. In remarks that caused a media storm, the trial judge, Mr Justice Bollen commented to the jury that it was acceptable for men, in certain circumstances, to engage in a measure of more than the usual ‘rougher handling’ of their wives to persuade them to have sexual intercourse.

More recently, in the field of competitive sport, I noticed that, after a particular game, an AFL player had been charged by the AFL Tribunal with ‘rough conduct’. That is defined as an intentional bump on another player where a head clash is a reasonably foreseeable outcome. It seemed like an odd offence in a game where physical contact, if not combat, was a natural corollary to winning.

Now comes the 4 Corners two part expose on residential aged care. The second programme focussed in part on the case of 2 carers in a West Australian aged care facility. It played video footage of the actions of the carers trying to put a resident to bed. Their actions, on any view, could at least be described as physically aggressive.

As a result of their conduct they were both charged with criminal assault. At the conclusion of the hearing, the Magistrate found them not guilty of the offence. However, he did appear to condone the use of ‘rough handling’ in the situation comparing the carers’ actions, regrettably, to that of a parent trying to convince a reluctant child into a car seat.

When I sat back I thought, at best, how ironically curious is that – rough handling appears to be acceptable in personal relationships and the raising of children but not, of all things, in contact sport.

Many of us would have an image of good caring – a softness, mixed with empathy, patience and a modicum of skill. But  what is the role of ‘handling’ and is there a place for roughness or hardness? Indeed, how much roughness is required in caring – does it sometimes need cajoling, coercing, or confining or, in the end, is roughness just a form of care less or care free contempt?

Through my lawyer’s lens, if rough handling by carers does not amount to a criminal offence and yet it is still described as abuse, it raises a legitimate conundrum – when, if ever, can abuse be criminal?

Caring for the aged is not  adult play time, a conjugal relationship or a combative game. It is providing emotional and physical support and help to those those who are in need and who are sometimes difficult, irascible, unresponsive or unappreciative. It is hard but, I am told, for those committed to it, very rewarding.

Trouble is, we need to find more of those caring carers. But, we can’t expect them to just be emotionally rewarded, they also need to be financially rewarded.

When it comes to aged care – speed is of the essence

If you’re a current full age pensioner and you need to consider moving into residential aged care, here is a salutary story about not dilly dallying when it comes to getting into action mode.

We all probably know, or at least suspect, that aged care is complicated and potentially expensive, even for age pensioners. In terms of care fees, all people moving into aged care will pay a basic daily fee of 85% of the single age pension (currently $50.16 per day). Some of us who are more well off, may also have to pay a means tested care fee. It can be up to $248 per day – yes that’s right, $248 per day. So, taking into account the basic daily fee and the means tested fee, that is a total of $2087.12 per week. Bear in mind, that doesn’t include any accommodation costs or personal expenses you may incur while living in a facility.

When you are considering moving into aged care or, as Centrelink would say, it is “reasonable to assume” you will, it can be very advisable to lodge, as soon as possible, the relevant form with Centrelink setting out your assets and income. It is very elegantly called the “Permanent Residential Aged Care Request for a Combined Assets and Income Assessment“. At some 28 pages long and with some 146 separate sections, the form is, to say the least, intimidating. However, it is what is required for Centrelink to assess the means tested care fee you may have to pay.  While you do not have to lodge the form (and some people consciously decide not to), beware, if you don’t, you will be required to pay the full means tested fee, the consequence of which is set out above.

Regrettably, many people don’t lodge the form promptly and wait till they are about to move in or even after they have moved in, before they lodge the form.  This can be bad news particularly for an age pensioner.

Why would that be?

Because, until the form is lodged and Centrelink assesses whether you need to pay a means tested fee, some age care providers will charge, and are charging, the full means tested fee, namely $248 per day even if you are a full age pensioner. This is on an ‘interim’ basis until the assessment by Centrelink is done.

Moving into aged care is up there with later life stress events but that stress soon mutates to downright distress where you have not done the proper planning for the move. These days, ‘Planning’ is a bit of a cliché, if not a discredited word particularly in the financial world, but I am a passionate believer in it especially when it comes to aged care. Getting some good financial planning advice, sooner rather than later, is crucial and not from just any old financial planner, but from one who knows about aged care.

By the way, the other by-product of not planning is that your family could collapse under the pressure. Don’t believe me? – If I had the time I could regale you with the lamentable tales of family implosion sitting on our many files. They are all the result of badly planned transitions and crisis management.

Trust me, I am a lawyer.

What do lawyers think of us?

Yet again, in Doyles Guide 2018 on leading lawyers, Margaret Arthur and I have been recognised by our peers as recommended lawyers in Wills, Estate litigation and disputes. Well done we two and thanks to all the others at our firm who make our recognition possible.

When retirement meets retirement

You baby boomers can be so lucky. Longevity means you can now be in retirement at the same time as your parents. You might have less experience in this phase of life but what the heck – isn’t it great to think that you and your parents can now share something in common in those later mature years.

But is it?

Applying the old adage – facts tell but stories sell, here’s a salutary saga on the downside of retirement synchronisation.

Alex and Eloise were looking forward to their retirement (as most do). They had ‘plans’ that involved significant periods of away time exploring the planet. Bob had even saved up for a single ticket on Richard Branson’s spaceship. He called it his celestial respite or a nearer to God experience. Surprisingly, they had been assiduous in obtaining the best financial advice they could on their retirement years – they had a plan for themselves.

Both of them had other siblings spread all over the country but they were generally disconnected or disinterested. They each had a retired widowed parent aged in their mid-80’s and were ‘fortunate’ enough to live in the same town as their respective parents. As children of the Great Depression, the parents had the usual bounty from their frugality and long working lives – a home, a pension and a passport account with the CBA. They still lived in their own homes but frailty was creeping up and they were each becoming more dependent on Alex and Eloise. The parents had each made Wills giving everything equally, including their homes, to their children.

Just before their latest sojourn to Tuscany, Eloise’s mum has a medical event ending up in hospital and unable to return home. Aged care now beckoned. Remarkably, almost as if it was a subconscious attempt to ‘go out in sympathy’ with Eloise’s mum, Alex’s mum suffers a similar event and can’t go home.

All their meticulous planning for their own retirement years now came crashing down in the face of their parental crises. They had to confront:

•   With their limited financial resources, how were their parents going to pay for aged care?
•   Would it mean selling their homes?
•   Would Alex and Eloise have to contribute themselves to assist their respective parents eg drawing down on their hard earned superannuation?
•   Would the other siblings contribute and if so how?
•   How would this affect the relationship between Alex and Eloise when the ‘matrimonial assets’ may have to be called upon to help their parents?

And so the list goes on.

Without descending into the complex issues we had to address, it raised a number of telling features and revealed a number of unanticipated stress points about their retirement:

1.     As part of their financial plan for their own retirement should Alex and Eloise have included some aspect of financial planning for their parents?

2.     Would it be necessary for Alex and Eloise to enter into a Family Law Financial Agreement to ensure that a fair component of the matrimonial assets was allocated between their respective parents?

3.     Should their parents consider doing new Wills (if they could) especially if their homes had to be sold?

From my experience, this scenario is not unusual. However, very few financial planners ask their clients to consider, and plan for, the potential filial and financial responsibilities for their ageing parents as part of their own retirement plans.

Perhaps it’s time to do so. Alternatively, we could all just keep working, never retire and drop dead at our desk. Now that’s a tempting choice.

Should you audition your adult children for their later life roles?

Is an errant adult child the product of nurture or nature?

For many parents, it is probably a question too hard to answer, or too late to ask. Either way they can feel a subconscious sense of responsibility for the outcome even if it is the inexplicable consequence of a healthy upbringing or just the unlucky emergence of a recessive gene from a convict past.

All reasonable attempts are usually made to remain a caring parent even into later life when the wayward child invariably comes a calling with hand out seeking more parental largesse for their failing fifth start up or drug debt.

Drawn as they are to help, parents can create a simmering tension between siblings particularly where the achieving children ask for nothing but the failing children are the early beneficiaries of a parental drip feed.

The sibling tension can explode when the parent dies but it can verge on a holocaust well before then – when the parent loses their capacity and someone has to make decisions for them. In the theatre of later family life, the loss of a parent’s ability to make their own decisions can turn a family from a grown up version of ‘the Waltons’ into a tragedy of Shakespearean proportions.

This is often the result of parents trying to do the right thing in earlier life but, in reality, setting their families up for failure in later life. The best example of this is when a single older parent comes to do their Enduring Power of Attorney document. In it, they have to nominate who, usually among their adult children, they wish to appoint to make decisions for them if they lose their capacity.

This can be a diplomatic nightmare particularly in larger families in which the children are in various stages of achievement or lack thereof. Most parents don’t want to display any favouritism for one child over another but, in a misguided attempt to maintain some equilibrium, they can get the decision horribly wrong such as:

  • A parent who believed that it was best to appoint children in accordance with their expertise. So she appointed her accountant son to make financial decisions for her and her nurse daughter to make personal and health care decisions. This division of labour was a disaster leading, as it invariably would, to destructive demarcation disputes between the two children
  • A parent who appointed the child who was caring for them. This, as is often the case, created a conflict of interest for the child
  • A parent who jointly appointed her only two daughters who hadn’t spoken to each other in 10 years
  • A parent who appointed her eldest child (because he was the eldest) and ignored his significant mental health issues
  • A parent who appointed all four of her children to act ‘severally’ ie any one of them could make decisions turning the decision making into a horse race.

It is easy to regard the making of an EPOA as a formulaic process and just as easy to ignore the significant power it places in the hands of the person/s appointed. The last thing a parent wants to do is to have a document that creates a lightning rod for tension in the family.

So, would it make sense for a parent to audition their children for the role? After all the EPOA is required to act in the best interests of the parent and what better way to ensure that than to sit the candidates down and tell them what you would want and assess whether they would be up to it. After all, they will have to perform a starring role potentially in your later life.

Makes sense to me.

My parents won’t make a Will – what to do?

We all, mostly, have an aversion to confronting our celestial transfer, also known as death. We live in hope it will never happen or, if it does, it will be a case of ‘she’ll be right mate’ or ‘don’t you worry about that’!

For adult children confident and concerned enough to ensure their parents have, as they say, their affairs in order, getting mum or dad over the line can be a herculean task.

But I have an aversion therapy for parental aversion. Like all good therapy it involves a story, and a true one at that from my own files.

Some of you may remember the 1950’s when, traditionally, the men worked and the women were assigned to homemaking and child rearing. In those days, when the newly minted married couple fronted the local branch manager of the Commonwealth Bank to borrow their first 200 pounds to buy their first 300 pounds home, what was the bank’s usual response? Sure they said, we’ll lend you that money but, we’ll only lend it to the man. Why? Because he was the sole breadwinner. As a result only the man became the registered proprietor of the new family home.

So what you may ask? The man had the usual cultural disdain for making a Will. Fifty years later he dies, without a Will leaving his spouse and 4 adult children on this earth. Here’s where the trouble starts.

Not having a Will meant the law, not him, determined what happened to his estate when he died. It’s called the law of intestacy. It says that, on his death, the first $150,000 and the household chattels will go to his wife and the rest is split between his spouse and his children. Here’s where the trouble got worse.

He didn’t die with $150,000 but he did die with sole ownership of that lovely family home bought way back in the 1950’s. The children were immediately entitled to a share of the house. You guessed it – the consequence was that the house had to be sold and mum was out on the street.

This is not only a true story but a salutary one. Dad’s recalcitrance was bad enough as was the flow on effect on mum. But his true legacy was even more serious and long lasting. The relationship between mum and the children was now poisonous and irredeemable. The true legacy of his lethargy and lassitude was the destruction of a previously happy family.

Leaving conflict and dysfunction may form part of your testamentary aspirations. If so, don’t do a Will. But if that desire does not figure in your thinking, as my daughters would say – der!