Q & A on 2GB discussing Wills and Estates 15 March 2016

Tuesday, 15 March 2016 

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

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CS       Yes, Turner Freeman Lawyers. We’ve got an expert in, each and every Tuesday on the program. Free legal advice which is very very rare to come across as you know and we’ve also got a $100 Westfield voucher to give away to our caller of the afternoon as well and remember there are some local newspapers too that have the Turner Freeman Legal Matters column. You can look for that as well. John Mann is in the studio for us today if you’ve got a question for John. 131 873 – dial away. John welcome to the program once again.

JM      Thanks Chris. I’m glad to be back.

CS       Yeah – we’re covering wills and estates today and specifically the laws regarding guardianship. Now, we can take calls on all of that area and there are various tangents to these particular areas of law. So 131 873. But just in terms of guardianship, with the change in demographics and Australia now has an aging population, are more guardians needed than ever before for adults?

JM      It’s definitely moving that way Chris. Medical science seems to keep us going longer and longer, which I suppose we should be grateful for but unfortunately our mental capacity doesn’t always keep pace with that and we can finish up living along life but the latter part of it, not very good quality wise with what we can do or comprehend.

CS       Okay, so what’s the process of appointing a guardian for an adult?

JM      The only exactly the same way as…. I’m putting this on a voluntary basis because there are procedures through the State Government Tribunals that also can be appointed but if your of mental capacity you can appoint a guardian to act for you by signing an appointment in very much the same way as we do with a power of attorney. That will appoint somebody else who can make decisions for us in relation to our wellbeing. It’s a lifestyle type of choice. In other words, medical treatment, dental treatment, where we live, what we need to live comfortably.

CS       So what’s the difference between a power of attorney and a guardian?

JM      Well a power of attorney deals with our assets, our property.

CS       Right.

JM      Whereas the guardianship… although guardianship appointments can include financial management which is similar to power of attorney, it is primarily for our physical well being.

CS       Right okay. And at the moment we’ve got a situation where 80% of adult guardians are 60 years old or older right?

JM      Yes.

CS       Which is why we are basically running out of the number of people who need to be guardians. The role of a guardian is to act in the persons best interest. Can someone have multiple guardians?

JM      Yes – there’s no reason why you can’t but you’ve also got to think of convenience and expedience because for example if medical treatment is urgently needed and you’ve got to look up three or four guardians to give consent, that could…. you could expire by the time you got them all together to sign. It’s often better to have one and one who is relatively near and close to you. I mean a substitute if they can’t do it.

CS       Okay – lets go to callers… 131873 again the $100 Westfield voucher to one of our callers between now and the top of the hour – the end of the segment. Wilma, go right ahead. John is listening.

Caller 1 – Wilma 

Wilma             Hello.

CS       Go ahead Wilma. John is listening.

Wilma             Ah, look I’m an executor to a Will. I was just wondering are there any entitlements to come to an executor?

JM      You mean – a benefit for yourself?

Wima              Yes.

JM      Executors are – subject to what the Will says – entitled to a commission for the pain and trouble for administration of the Estate. Now that’s often determined by the Court. It is a percentage of the assets of the Estate whether they be in the way of capital like real estate or income – money earned on shares and those sorts of things.

Wilma             Yes.

JM      Percentages can range from 1 half of a percent up to say 5, and that also depends on the volume of work and the difficulty of the administration of the Estate.

Wilma             Right.

JM      You might have an Estate worth 5 million dollars but just consists of 1 property, you might have another Estate worth a million but consists of various investments, managed funds, all sorts of things that involve a lot of work on the part of the executor.

Wilma             It’s very simple, just the one house….

JM      Yes – that is your entitlement. Generally speaking executors firstly approach the beneficiaries with a proposal to see if the beneficiaries agree and if they don’t then the executor is entitled to apply to the court for a commission and the court will determine how much.

Wilma            Does this happen while probate is going through or after?

JM      No after probate.

Wilma             After probate – I see. Thank you very much indeed.

CS       Good on you Wilma. Much appreciated. What about children. What’s the process of appointing a guardian for a child?

JM      Generally it’s done by a Will because if either parent is alive, they are naturally their guardian.

CS       Yeah.

JM      So in making a Will and you’ve got young children, it’s very important to nominate somebody else who may be a guardian for the children.

CS       Okay. I understand.

JM      And if I can just say that the important part of guardianship is the ability to give a legal consent to somebody who can’t, whether they are a child or with an adult. A guardianship appointment can only be used once the person cannot make that decision for themselves. Whilst they can, they continue.

CS       Alright.  Kerry, go right ahead Kerry. You’ve got John listening.

Caller 2 – Kerry 

Kerry              Oh hi John. How are you?

JM      Well thank you.

Kerry              Um, look just a small problem, my mother is 98 years of age, she is in care up the North Coast and every time my sister has moved she’s moved mother to a different place and we’ve never known where she’s been. Now we have finally found her and she…. my sister has taken out a power of attorney and enduring guardianship to the point where we have not been told where she ….. or what her health is and things like that because people are scared that they are going to have action taken against them. Now I thought guardianship was not to stop siblings or like her children from finding out how her health was…. ah we have visited her you know if 3 out of the 4 places that she’s been put in through detective work we have found her – you know what I mean?

JM      Yes.

Kerry              So we’ve followed her and her health but her health is the most important thing and we want to be able to ring up and ask how is she, how’s her medication, you know, she’s had a couple of falls, we want to know this and its only been through you know being really nice and caring with the people that are dunning the organisation, not through what my sister’s told us. So what… how do we …. where do we stand legally with finding out the actual health of our mother.

JM      This is rather a vexed question because.

Kerry              Yes.

JM      Remembering though guardianship is not someone’s right to control another person’s life, it’s to act in their best interest and to arrange for whatever they need to have a comfortable and reasonable lifestyle. Now if you are of the view that your mother’s not being properly cared for or for whatever else, you as her daughter can apply to the ENCAT – the Government Tribunal for appointment as guardian yourself or the appointment of the Public Guardian, The NSW Trustee & Guardian who also have that function but you need evidence as to what your mother’s condition is like and that she’s not been properly looked after etc. Unfortunately this could be difficult because the guardian might say to the place that your mum’s in that I don’t want her being disturbed by other people because it upsets her and so forth. These things happen but the appointment of a guardian even though she appointed the guardian herself when she was able to do so, can always be reviewed by the ENCAT Tribunal Guardianship Division.

Kerry              ……… because in the last 5 years with all the places she’s been the past 5 years we’ve been keeping up to speed, so this last place where they disappeared to we finally find out as I said, it’s just you know pretty sad that people can’t tell us because they’re threatened with legal action.

JM      I appreciate that. Yeah.

CS       Yeah. Good on you Kerry. Thank you very much for your call and hopefully that’s been somewhat helpful. Now I’ve just heard from Massoud, he’s just sent me this online, there’s a car smash on the M2 westbound, just after the Lane Cove Tunnel.  Emergency vehicles are on site. One lane is open, the traffic is heavy. Just an update on that one as well. It’s 13 minutes to 2 o’clock. 13 to 1 in Queensland. John Mann in the studio for Turner Freeman – free legal advice – we are talking Wills, Estates and Guardianship.  131 873 – 10 minutes away from news at the moment. Joanne. Go right ahead.

Caller 3 – Joanne 

Joanne            Thank you Chris. Hello John.

JM      G’day.

Joanne            It’s a question about guardianship. My husband’s under palliative care and they’ve told him to put his affairs in order and I’ve already spoken to a solicitor about getting a guardianship drawn up. It’s very hard to talk to my husband about it at this time to get him to sign it, so what happens if I don’t have a guardianship?

JM      The situation as his wife, you do already have some rights without actually having to have a guardianship appointment. The Act recognises close personal carers, as people such as yourself, your spouse, who can in most circumstances give a consent for the things like medical treatment if that’s needed. There are some exceptions you can’t consent for example to things like sterilisation or experimental surgery but generally speaking one spouse can give a consent to the other.

Joanne            Okay. Alright. It’s very hard to broach that subject at the moment.

JM      I can understand and the difficulty is if you can’t get an appointment made and you feel it’s necessary, particularly where there might have to be a guardian alternate to you then it may be unfortunately you have to approach the Guardianship Tribunal but then they will only make that decision as long as your husband can’t make that for himself otherwise he’s still free and independent to do as he chooses.

Joanne            That’s right. Okay.

CS       Okay Joanne. Thank you very much for your question. 131873. Some news out of the Crime and Corruption Commission in Brisbane. Now you may know or may be aware of a controversial 3.3 million dollar land deal by Brisbane City Council has been under investigation by the Crime and Corruption Commission. It was forwarded to them by the Labour Government and it was in relation to a deal with a Liberal National Party Donor. Well according to 9 news in Brisbane, the Crime & Corruption Commission has cleared Brisbane City Council of any wrong doing following that investigation. So the Council has been cleared of any wrong doing. Got a question coming through from Frank. Pretty simple question. Go ahead Frank.

Caller 4  –      Frank 

Frank             Hi John, we paid solicitors to make a Will for us for example. Why should it be able to be challenged? And I’m not talking about dependent people. If I decide to give my house to someone, why should it be challenged? That’s my Will.

JM      Yeah. I fully understand.

Frank .           want the house to be given to so and so….

CS       A lot of people ask the same kind of question.

JM      I can understand that.

CS       Why write a Will if the Will is not something that is considered contractually binding?

Frank             Exactly.

JM      Well the responsibility for that primarily addressed with our political masters. They are the ones who said that if there are people in your life referred to as eligible people. You are expected to make some sort of provision for them or some adequate provision for them. Now in the absence of those sorts of people, then of course you are free to do what you like but you are also free in this country to dispose of all of your Estate by a Will. In other countries – European countries – you can only dispose of a certain percentage and you must give a percentage to your various relatives. I think a lot of people would agree with you that, yes I would like to leave my house to a charity, but if you have in your life dependent people, then they may have a right to challenge the provisions in your Will and that’s the law, we can’t do anything about that.

CS       That’s the law. Look there’s no good arguing any more Frank – that’s the existence of the law. But I tell you what seeing that it is a question that is so common and quite an intrigue in the way Wills are made up, how about we get you the $100 Westfield Voucher Frank, just for you, how’s that?

Frank             Oh. Thank you very much.

CS       Okay Frank – There you go. Stay right on line and we’ll put you through to Gabriella and we’ll make sure that $100 voucher from Westfield and Turner Freeman goes to you. Sharon. Go right ahead

Caller 5 – Sharon 

Sharon            Hello Chris and John.

CS       Hi

Sharon            I’ve got a question about guardianship. I’ve got Parkinson’s Disease and it’s really advanced and my son has to give an enduring power of attorney for me and I’ve just heard you talking about guardianship, I’m wondering whether I should get that or both?

JM      I think both is very sensible planning remembering as I said earlier about guardianship being only be able to use when you make those decisions for yourself, as long as you can and continue to then guardianship can’t be used. But I think it’s a very sensible piece of planning because none of us knows what’s around the corner and if we don’t have that in place, then someone may not be able to make a decision for you and will have to approach the ENCAT Tribunal for the authorisation to do it. So as I say I think the sensible advice is to do both.

CS       Alright Sharon, thank you very much for the question. I’ve run out of time. John Mann – Thank you very much for coming in again on that subject. Well done. Thank you John from Turner Freeman – we do that each and every Tuesday at this time and there’ll be another subject to tackle next week and by all means get your questions answered online free legal advice in our Legal Matters segment.