John Mann discussing estate law issues
Discussion of elder abuse on 2GB
Tuesday, 7 February 2017
CS – Chris Smith/JM – John Mann /C1,2,3, etc – Callers
CS They certainly are and the only way to describe this is to say that it’s shocking, anywhere between 2% and 10% of older Australians are victims of elder abuse. The Australian Law Reform Commission recently released a discussion paper with recommendations to address the issue but how can you prevent it and thanks to Turner Freeman Lawyers and their legal matters segment we have a $100 Westfield voucher to give away to the caller who asks the most relevant question of the day. Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, family and employment law, wills and estate and property law. The NSW offices are Sydney, Parramatta, Campbelltown, Penrith, Newcastle and Wollongong, they also have offices in Queensland, South Australia and Western Australia and if you have a question on elder abuse or wills and estates more generally gives us a call right now on 131 873. I’m looking forward to catching up with my next guest because I don’t have a will and people keep telling me I should get one so John Mann an accredited specialist in wills and estates and property law, he’s here in the studio with me. G’day John.
JM Good day, how’re going?
CS Been a bit of a battle to get in mate from Penrith.
JM Yes, bit of a soggy trip. A long procession of traffic.
CS Well mate let’s talk about this because elder abuse, what are the most common forms? I mean just reading this report and the story that was given to me today I thought really, is this still happening? What are the common forms?
JM Well put aside the physical abuse because that is one of the problems but more common problems that I encounter is where an elderly person has appointed someone to act as their attorney to look after their financial affairs and somewhere along the line the attorney does the wrong thing, they help themselves to the persons money, sometimes meaning well but other times just straight out theft, and it’s a silent crime, it’s one that doesn’t come to the surface quite often until much later when of course it’s too late. The Law Reform Commission tried to look at ways of making the procedure better but human nature being human nature is very hard to guard against. There are a few things we can possibly do and in making our power of attorney to perhaps consider having more than one, so that there is a bit of a supervision one on the other. It’s not a good practice in my belief to have your attorney also your executor in your will because if they fill both roles then it becomes far more difficult for the beneficiaries under the will to have the person who’s the executor account for what they did when they were the attorney while they were alive.
CS Yeah, yeah exactly. I suppose the next question is and for the people listening what should they look out for, what may indicate someone is suffering from elder abuse?
JM Well as I say very often this doesn’t appear until much later. The classical situation is that the attorney is looking after mum’s affairs, then mum has to go into a nursing home, the nursing home says you have to pay a bond of $300,000.00 and suddenly she hasn’t got any money. That’s the most common sort of occurrence otherwise it is very difficult to detect because basically the person who’s the attorney is accountable to the person who appointed them rather than anybody else. Now that might change if the person who’s appointed them loses control of their affairs and their affairs are managed by someone else under a financial management order but that’s the difficulty.
CS What can they do? I mean if people are suffering from this sort of abuse what action can they take, what are they allowed to do?
JM Well the attorney ultimately can be made to account but the difficulty always is that if the money’s gone through the poker machines there is little chance of recovery of it and somebody’s life savings has gone down the spout at a time that really they should have the money there to be looked after in their old age. It’s a demographic problem, we’re all living longer, the longer we go the more chance there is of becoming disabled or not able to run our own affairs and I’m sure there’s legions of people who do all the right things out there and run their parent’s affairs or whatever else but there is the odd rotten apple who does these things and they’re the ones that are causing all the problems.
CS Alright well if you’ve got a question for John Mann an accredited specialist in wills and estates and property law 131 873 the number, we’ve got a $100.00 Westfield voucher to give away, so don’t worry about booking yourself in to see John at his practice although you probably will need to in the future after an initial consultation on this program and the people you need to talk to are Turner Freeman Lawyers but hey get some free advice right now 131 873, $100.00 Westfield voucher to give to the caller who asks the most relevant question of the day. John just a question on my behalf should I pull my finger out, I’m 32 I don’t yet have a will. Should I have one?
JM I think you should.
CS: Yeah, how do I go about it and what’s the process of getting a will for our younger listeners.
JM Well generally speaking this is I suppose a lawyer speaking but my view is that we go to an accountant to do our taxes, we go to the doctor to look after us when we’re sick we go to the dentist to fix out teeth, we go to a lawyer to get our will done.
JM Now for two reasons. One, generally speaking the lawyer will know what he’s doing and secondly if he makes an error in preparing your will then he bears the responsibility for that. Now if you do your own and you muck it up, well you’re on your own and lawyers do quite a long line of business in homemade wills, that’s something that happens quite frequently.
CS You get some clients that would have some very strange requests to be put in their will wouldn’t you?
JM Oh yes.
CS Any funny stories spring to mind, John?
JM Not immediately but look it is basically your last say. It must deal with your property with what you want to happen when you pass away, that’s what the law the will is about, it’s what your testamentary wishes are. Your testamentary wishes are what’s to happen to your property. Now you can put other things in your will, people say I want to have a ceremony in the church down the road, I want everyone to wear a revolving bow tie, I want these songs sung, I want to go in an orange and yellow box, but they’re wishes they’re not actually part of the will although for some people it’s important to put them in. The other thing is the will also says who is to control your estate, your will will appoint an executor or executors, they’re the ones who you are trusting to carry out your wishes, look after your affairs, get probate of your will, pay your debts and distribute your estate as you wish.
CS Alright, well let’s get some calls because there’s plenty of people that have a few questions for you. We’ll start with line 5, Jill, is it Narraweena, hi Jill.
Caller No: 1 Jill
Jill Hi, I just wanted to know my aunt’s house burnt down and when she was in the early stages of dementia and when the money started coming in, my cousin took approximate $600,000 from her and we went to a tribunal and everything but on that day of course she was pretty ship shape, of yes I gave him permission, and now her and her husband are living on a diminished pension and we don’t know how to go about doing anything if we can do anything.
JM Well the difficulty is if the money has been taken and has gone.
JM Recovering it can be quite a difficult exercise. Now you have no particular legal status in this.
JM The tribunal will probably have appointed somebody as her financial manager, if she can’t mange her own affairs.
Jill Oh no, she said she could.
JM Well then it’s now to her. She’s the one who has to take action because it’s her money and she’d have to take action through the Courts to recover it. Quite often these things in my view border on crime, theft.
JM But you’d have a very difficult job in getting the police interested in investigating things of that sort.
CS Alright Jill hopefully that helps you and you can always talk to the good people at Turner Freeman Lawyers and get yourself some help on that. Line 7 we go, Guy’s next for you, John he has a question. G’day Guy.
Caller No 2 Guy
Guy G’day, in my family situation funds disappeared from the estate and it’s black and white, it’s cut and dry who took the funds and what they were spent on. My question to you is, is there are statute of limitations on how long we can, before we can you know we have to go for this person legally or does it run out.
JM That’s a very good question. If there is an element of fraud then there is really no particular limitation that applies to it.
JM If it’s a contractual matter like a loan or something of that then the general rule is 6 years.
Guy Okay. That answers my question perfectly. Thank you very much.
CS Great question Guy, you’re in that running for the $100 Westfield voucher mate so stay there, you’re certainly front runner at the moment. Line 4 we go, up in Queensland, Daniel has a question for you. G’day Daniel.
Caller No 3 Daniel
Daniel G’day guys, just a question in regards to guardianship with my aunty who had taken over power of attorney for my grandmother’s estate and then she was stealing money so my mother was then put in charge but now there’s a fight over who is the legal power of attorney, it’s been handed over to Guardianship but how long can that take to go through.
JM Well again that’s how long is a piece of string, the Guardianship Tribunal or the division of the tribunal is very busy but if there is element of exploitation and an immediate risk they will act quickly but they need to know because if you’re only sitting in a queue waiting your turn while these things are going then it needs to be brought forwards and it needs to be brought to their attention but they do and can act promptly in the appropriate situation.
CS Alright Daniel?
Daniel Alright, thanks then.
CS No worries bud, appreciate your call. Steve is next with a question on dividing his assets. G’day Steve.
Caller No 4 Steve
Steve Yeah, how’re you going.
CS Fantastic. What’s your question for John?
Steve I’ve got four sons and I’ve got a whole heap of vintage cars and a couple of properties and I’ve told them all I want to divide everything equally amongst them before I go and get them to actually sign some form of acknowledgment to say that they’re not going to fight each other once I’m gone and they’re going to accept my determination on where I want my money to go. Can I do that legally and will it hold up after I’m gone?
JM Well there’s nothing to stop you having your sons sign an agreement as to who gets what. Unfortunately sitting over us is State legislation called Family Provision. Now family provision is open to any eligible member of a person’s family to bring a claim against a will and the Court has had jurisdiction and at jurisdiction can’t be taken away, the only way this can be done successfully is for when you make the gifts to apply to the Court for an order for what’s called a limitation of rights or a release of rights, so that having been given a property the son says I accept this in lieu of any provision I might get under your will and that has to be approved by the Court to make it absolutely stick.
CS Another good question. Good on you Steve, appreciate it mate. Just an update from our news room the SES has now helped 13 separate flood rescues while 100 people in an apartment complex in Marrickville have been evacuated, there is a large hole next to the Newick Street address which is filling with water and it’s now threatening the foundations of the building, there are concerns the building is at risk of toppling into the hole, so quite a serious situation at Marrickville, we will keep you up to date with that after the rain that fell in Sydney earlier on today. Probably got time for one more and Sue is the lucky caller on line 10. G’day Sue.
Caller No 5 Sue
Sue Hi there, how are you?
CS Very well thank you. What’s your question?
Sue Look I was wondering my father in law is moving back near us from his estate and he doesn’t seem to be able to manage his financial affairs, he seems right of sound mind but he’s got limited money through the pension, we’ll be helping him set up into an apartment or a rental or something but we’re worried about what happens down the track in regards to his money and how to make sure there’s he got enough to get through week to week.
JM Well this is really the primary purpose of a power of attorney. Power of attorney we make in the sense of planning for the future if we can’t mange these things for ourselves we appoint somebody else to do it. This is why a great question of trust of what we do, I would suggest if he’s of sound mind he should make one, get some professional advice about it and how best to set it up but there it’s done, it’s ready if something does go wrong then it can be used, if it doesn’t will it can sit gathering dust and he can continue to manage his affairs but it’s a sensible piece of planning particular as we get older.
CS Good on you Sue, appreciate your call. We’ve run out of time John unfortunately, we could probably do this for another half an hour. Everyone’s got a question about wills and will disputes and the like, what we can do is suggest that they get in contact with Turner Freeman Lawyers, you’re out there at Penrith, they can talk to you but there are people at Turner Freeman Lawyers all over the place that can help you with all different problems and our $100.00 Westfield voucher I think today might go to Guy with that fantastic question a little bit earlier on, so Guy if you can give us a ring back we’ll get your details and you’ve got yourself a $100.00 Westfield voucher. Thank you for coming in John, I’ll let you battle the traffic on the way home.
JM Thank you.
CS See you, bud, John Mann. Fantastic from Turner Freeman Lawyers and on the Chris Smith Show we have our legal matters segment each and every Tuesday on the program.