The Australian Law Reform Commission report Elder Abuse – A National Legal Response recommended the adoption of national safeguards to minimise the risk of enduring documents being used to exploit seniors; however, elder abuse extends beyond documents such as powers of attorney, and proper safeguards can reduce the risk generally.
With that objective in mind, here are some precautions to take when advising an older person, based on court decisions.
Setting up the meeting
Take instructions only from the aged person: Instructions should be taken from the aged person and not that person’s (real or supposed) delegate. Courts have emphasised that full information should be obtained about the status and personal position of the aged person.
See the aged person alone: The aged person should be interviewed alone (or, at worst, with a support person who has no interest in the outcome of the interview). Any person who could potentially benefit from the matters discussed should not be within sight or hearing.
Devote sufficient time to the meeting: Time must be taken to enable an assessment of the aged person’s understanding of the issues discussed at the meeting. An instance when this did not happen was the case of Dickman v Holley; in the estate of Simpson [2013] NSWSC 18. A solicitor took instructions for a will and power of attorney from a 96-year-old woman in just five minutes. It is little wonder they were both set aside.
Meet in an appropriate place: The meeting needs to occur in a place where it is appropriate to discuss the relevant issues. This is unlikely to be a café, supermarket, news agent, pharmacy or any other place that doesn’t offer a quiet and confidential space. It is important to ensure that the environment in which the meeting is held allows the aged person to take in what he or she is told. This may mean removing babies, toddlers, mobile phones and other distractions.
Conducting the meeting
Identify yourself: It is important that the aged person knows who you are and what your role is. It is important to ensure that the aged person chooses you, or understands that they may choose their own adviser. If not, the aged person may be considered as not having received independent advice.
Get the language right: It is vital to communicate with a language in which both the adviser and the aged person are conversant. If this isn’t possible, ensure that an independent and qualified interpreter translates the conversation.
Ascertain the aged person’s intentions: The aged person should articulate his or her reasons for seeing the adviser. Ascertaining the outcome the aged person wishes to achieve through the particular transaction – be it medical, legal, financial or other – will usually define the terms of the adviser’s engagement.
Explain the transaction: There are a number of aspects to this. The aged person’s attention should be drawn to the positive and negative effects of the transaction. This involves advising about the propriety of the transaction, and warning against an improvident transaction. It also requires advice as to the alternatives available, and their advantages and disadvantages.
Ensure that aged care understands: It is crucial that the financial adviser discusses the relevant issues in a manner that allows the client’s aged-care adviser to form an opinion about the older person’s understanding of the particular transaction.
Allow time for cogitation: Unless there is a need for urgency, it will often be important to allow the aged person the opportunity to consider any documents and issues at their leisure.
Ask open-ended questions: Open-ended questions allow for an evaluation of an aged person’s understanding. Clients’ answers will indicate in their own words how well they appreciate the significance of what they are about to do. Ask questions that start with words like why, what, who, when and how. These are the types of questions an investigative journalist asks. They don’t start with do, is, can, will or has, as such questions allow a yes or no answer.
Record-keeping
Take detailed notes: An adviser should take detailed notes of questions asked, answers given and general observations. This is particularly important when there are circumstances that may cast doubt on the aged person’s mental capacity, such as a longstanding diagnosis of dementia, recent or current hospitalisation, or another medical condition.
Obtain appropriate expert opinions: An adviser who has doubts about an older client’s mental health should obtain a medical opinion about the client’s mental capacity, ability to withstand pressure and other appropriate issues. It is important to choose a doctor carefully, tell the doctor the relevant legal tests, give the doctor the relevant information, and understand the doctor’s limited role.
Hold on to records: An adviser should retain file notes and expert opinions indefinitely. The need for proof can arise many years after the legal work is performed.
Darryl Browne is the principal of Browne Linkenbagh Legal Services in Leura, NSW. He is chair of the Elder Law, Capacity and Succession Committee of the Law Society of NSW.
