John Mann providing Q & A on Wills and Estates – 5 April 2016

Tuesday, 5 April 2016 

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CS – Chris Smith /JM – John Mann /C1,2,3, etc – Callers 

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CS       Well it is Senior’s Week in New South Wales and a few of the other States of Australia right now, so I think it was an inspired idea from the people at Turner Freeman to sort of twist our usual discussion about wills and estates into seniors and the threats that they face from others and we’re talking about elder abuse. Now it occurs in hospitals, it occurs as you know in recent reports in nursing homes, but it also occurs within families. Now the Council of the Aging estimates that as many as 20,000 Australians over 65 are financially or physically abused by a relative or a carer – Financially! That’s interesting. Let’s find out what you can do legally if you or anyone you know could be becoming a victim of elderly abuse. John Mann is from Turner Freeman Lawyers. He is in the studio right now and he’s happy to take your calls. You can phone right away on 131 873 and thanks to Turner Freeman Lawyers and the segment, the Legal Matters Segment. We’ve got a $100 Westfield Voucher to give away.  Someone’s got to take it away this afternoon and we’ll give it to the most – the best question of the afternoon all the way up to 2 o’clock. Turner Freeman Lawyers – don’t forget, can provide you with a range of specialised legal services including compensation and negligence law, asbestos litigation, family and employment law, wills and estates, commercial litigation and superannuation and disability claims.  Let’s get your calls on 131 873. John Mann, thank you very much for coming in once again.

JM      G’day Chris.

CS       Now take us through the different types of elderly abuse. I’ve mentioned they are financially or physically. How do you mean abuse financially?

JM      Well basically by people helping themselves to somebody else’s assets or money. As we get older quite frequently we get to a stage where we can’t manage our own financial affairs and we have to appoint others to do that for us. Now, Powers of Attorney which is the usual way of delegating responsibility to somebody else has some built-in features but it also is open to abuse like anything else and to the person given Power of Attorney, they have to be advised when they sign it that the person their appointing or the persons they are appointing, will basically act as they act themselves. So you are in control of their affairs.

CS       That’s right but if all of a sudden you’re giving someone in the family your credit cards and your key cards and you know financial responsibility, you don’t know, you don’t know whether you are being abused.

JM      Exactly and that’s the exact point when a person signing an Enduring Power of Attorney that your attorney will be acting with your property, with your assets at a time you are not in control of the situation and this is where these things happen.

CS       So how do you avoid that happening?

JM      It’s very largely a question of trust in the person you appoint. Now there are some things that you can do – a Power of Attorney for example doesn’t have to be anything and everything the person may do, it may be limited. So that you can say my attorney may only do transactions with my bank account with St George Bank at Westfield or whatever the case may be.

CS       Right.

JM      But when you’re talking about planning for the future and you’ve got a limited Power of Attorney, if something happens that’s not covered by it, then you’re in limbo.

CS       Yes that’s interesting. So you can put certain constraints, maybe you’ve got a nest egg in another account and just for your own peace of mind you say – that’s out of bounds….

JM      Yes.

CS       They cannot be in control of that… That’s interesting. Bill has got a question for you – John Mann is listening – go right ahead.

Caller 1 – Bill 

Bill      Oh g’day John – how’re you going?

JM      Good thanks Bill.

Bill      Ah, look my family is just going through a case at the moment where a family member has been doing some things that aren’t….. well let’s just say are not right – but one thing I wanted to highlight was that I can’t understand why because of the legislation isn’t tightened because they seem it seems quite easy to become a power of attorney but it’s quite often the person handling the power of attorney to may not be faithful or might not be the right type of person to handle that and that as we found if you want to take action – if you have to deal with the public guardian, it’s extremely slow…. our recommendation would be take your case directly to QCAT and deal with it there and this is just from our experience – in our case the family member has been removed – the power of attorney and made administrator and hands have been taken off any funds but once again the Public Trustee is involved now and once again very very slow – you have to real write every single thing that you do and back it up all of the time – so that was my point and that’s our experience and we are still going and we’re probably a year and a half into action at the moment…..so….

CS       See that’s interesting what you say Bill and it was my next question to John. So let’s continue the conversation here. If say a brother detects that his sister or vice versa is ripping off mum, now in a nursing home somewhere and has got the Enduring Power of Attorney, how do you prove that some things are missing – how do you go about stopping it?

JM      It is one of the difficulties with the situations because very often you as the outsider will not have access to the bank accounts or any of that information. Overseeing Powers of Attorney is the State Government Tribunal NCAT in the Guardianship Division – now they have the power to remove and replace attorneys, they can revoke Powers of Attorney – they can commonly if there are issues appoint the New South Wales Trustee and Guardian which is basically the only unbiased institution that does this sort of thing. Now, as Bill rightly points out, once someone’s affairs are managed there – they are managed by a fairly impersonal basis – I’m not saying that it’s done in any way badly but they don’t know the person from Adam and they have to act on whatever they think is best in the circumstances and that’s the only thing that’s available that you can say is strictly neutral.

CS       Yes – exactly. All right – thank you for your call Bill. David go right ahead – John’s listening.

Caller 2 – David

David  Good afternoon to you John. I’m currently going through this myself – I lost my mother six weeks ago. I contacted my family regarding the bank statement – getting a copy of it which we were told the other three or four beneficiaries were entitled to a copy of the bank statement – should it take longer than this 6 weeks to get that John or is my sister being a bit hard to get along with?

JM      You’re mum’s passed away has she?

David  Six weeks ago yes.

JM      Does she have a Will?

David  No the Will has been forwarded to all of us – it’s a four way split – but as I said to the current solicitor who – he’s not helping at all – I’ll be going to my own solicitor – who will probably take this to court – but it’s just – John how long does it take to get a simple piece of paper from the bank?

JM      Well the question is that the control of that situation rests in the hands in the executor of the Estate – they have the control of the deceased’s persons affairs and for all intents and purposes represent them. I wouldn’t thought it would have taken very long to get a statement from the bank but there may be difficult circumstances that I am not aware of..  But in the circumstances one of the difficulties that happens and one of the opportunities for abuse in these sort of situations is where the person who was the deceased person’s attorney is also their executor – meaning that the beneficiaries of the estate have very limited access or ????…… now – to the financial situation before the person dies – this is a very serious issue.

David  Just quickly John, should that bank account from the day of her death been frozen?

JM      It will only be frozen from the time the bank are aware she’s passed away.

David  Well you’ve just put dent in my case here because that’s a lack of trust I have at the moment – As I said 6 weeks to get a piece of paper – I know other family’s took a week and they all knew what finances were in that bank account and that’s when – when someone’s hiding a bank account John, I smell a rat.

JM      Well….. I can’t comment on that but I can understand what you know –your thoughts are at the moment.

CS       Sounds rather fishy but it’s something that you’ve just got to ask for  – demand –

JM      You should keep asking and acting upon in.

CS       131 873 the telephone number – it is 12 to 2 back to John Mann and our Legal Matters Segment courtesy of Turner Freeman right after this.

Short Break 

CS       Our Legal Matters Segment brought to you by Turner Freeman and John Mann is in the studio. We are talking about elderly or elder abuse and we are not just talking about physical abuse and there are examples of that that have come through the news channels of late but also financial abuse and it seems as if people are having great difficulty trying to fathom exactly what is going on with someone in their family because their financial affairs are being held by someone else which is a difficult thing to pursue. 131 873 – go ahead Dave.

Caller 3 – Dave 

Dave   Oh hi – my mum has passed a couple of weeks ago. I’m the only child and there’s no-one else named in the Will. I think it was just done at the Local Court – what’s the next steps involved in this process?

CS       So there was no Power of Attorney sorted out beforehand?

JM      Well a Power of Attorney comes to end when we die.

JM      When we pass away then it becomes the executor of our estate who has the care and control of our affairs. What needs to be done next is of course is going to depend on what assets your mum has and what needs to be done what to deal with. Generally speaking if she has real estate or a reasonably substantial bank account, probate of the Will will be necessary in order for the executor to be able to give a proper discharge to the receipt of the asset of the Estate. Now that all sounds a little bit one sided where you are the only beneficiary but nonetheless that would be the process but it depends on what your mum’s assets are.

Dave   Oh just the house and car – not much money – yeah I just wasn’t sure if there is an executor named in the Will – whether I had to go to the Public Trustee or ……

JM      No – not necessarily – if there’s no executor named in the Will, but you are the beneficiary – you can apply to the Court for Administration of that Will as the beneficiary without having to engage the Public Trustee.

CS       To work through this process though should he get himself a solicitor to deal with ……

JM      I think it would be appropriate to get some advice on the Will itself as to how it’s structured and what your options might be but as a sole beneficiary, that may be available to you.

Dave   What’s the difference if I go through the Public Trustee – how does – is that a harder process?

JM      Well not really – the Public Trustee will manage the Estate for you – the major difference in this instance is that the Public Trustee are a business –  they charge fees for the services they provide so they – apart from whatever legal fees would be payable – which are payable in any event – the Public Trustee charge commission which is a percentage of the value of the Estate.

CS       What sort of commission?

JM      Well, don’t hold me to this Chris – I think the last I heard – their commission is 4.4% of the first $100,000, 3.3% for the next and 1.1% after that.  Now that’s just a fee that they charge the Estate.

CS       So Dave now that you’ve got those fees in your head – you might wish to contact them and/or get yourself some legal advice by the sound of it.

Dave   I had made an appointment tomorrow but I might cancel that and look further into it.

CS       I tell you what I will do, I’ll get you the $100 Westfield Voucher.

Dave   Oh beautiful – thanks Chris.

CS       To pay for some of these expenses that you might have coming up Dave.

Dave   Yeah – there’s going to be a few – but yeah – no – it’s all good. Thank you very much.

CS       No problems Dave – stay there Dave and we’ll get the $100 to you. I’ve run out of time. We could have been here forever talking about this.  We haven’t even got into what might be happening in a home somewhere but suffice to say that if ……. and I’ve only got 15 seconds but if you fear that your loved one is being mistreated in a home for instance – you have to approach the home surely and then approach the police?

JM      Of course – of course.

CS       Yeah okay John – thank you very much for coming this afternoon.

JM      Thank you Chris.

CS       From Turner Freeman Lawyers and we have them in each and every Tuesday on different topics, different subjects and we’ll do the same next Tuesday as well. It’s 4 minutes away from news.