Dear Lawyers – A little birdie told me something

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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.

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.