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Still more safeguards to reduce Elder Abuse (Asking open questions)
In my articles Safeguards to reduce Elder Abuse (Setting up the meeting)[1] and More safeguards to reduce Elder Abuse (Conducting a meeting)[2] I referred to the recommendation of the Australian Law Reform Commission that safeguards could reduce the risk of elder abuse facilitated through the misuse of powers of attorneys. I observed that proper safeguards could reduce elder abuse generally, and not just with powers of attorney and not just with lawyers.
In the second article, which suggested safeguards for conducting the meeting with an aged person, I referred to the need for an adviser to assess an aged person’s understanding of the particular transaction being undertaken, be it medical, legal, financial, or something else. In that context, an adviser should usually ask open questions[3]. This article expands on that suggestion.
The reason
Open-ended questions allow for an evaluation of an aged person’s understanding[4]. This illustration from Doulaveras v Daher [2009] NSWCA 58 explains the benefits:
A solicitor who gives a detailed and careful explanation to someone sitting on the other side of the desk might form the view that that person understood the transaction if the person remained silent during the explanation, looked at the solicitor during it, periodically nodded, and when asked at the end whether all that had been understood, also nodded. Alternatively, a solicitor might form that view on the basis that the person on the other side of the desk periodically asked questions that related to the subject matter. In the first of those situations, if the person on the other side of the desk had, unbeknown to the solicitor, a serious deficiency in brain functioning, the solicitor’s conclusion might not be a reliable one, however honestly it may have been arrived at.[5]
The legal responsibility
In the context of understanding a power of attorney, a now-retired Court of Appeal judge has stated that the prescribed witness’ “clear responsibility is to undertake sufficient explanation and sufficient probing[6] to come to an informed view about the state of the principal’s understanding” (emphasis added). The judge added that “an attempt should be made to get from the [principal’s] own mouth some statements indicating their appreciation of the significance of what they are about to do.”[7]
Examples of open questions
Open questions will often start with the words like
- “why” (as in ‘Why are you seeing me today?’, ‘Why are you leaving X out of your will?’),
- “what” (as in ‘What is the reason you are appointing Y as your attorney?”, ‘What do you know about Z’s financial circumstances?’),
- “who” (as in ‘Who is the person best able to make these decisions for you?’),
- ‘when’ (as in “When do you want your attorney to be able to act for you?”) and
- ‘how” (as in ‘How is that legal action in the person’s best interests?’).
These are the type of questions asked by an investigative journalist.
Examples of closed questions
Open question wouldn’t start with the words like
- “do/does/did” (as in ‘Do you agree?’),
- “is/are” (as in ‘Is that what you want?’),
- “can/could” (as in “Can you still look after yourself?”),
- “will/would” (as in ‘Would X be a good person to have as your attorney?’) or
- “has/have” (as in “Have you understood that?”),
as these words allow for a ‘yes’ or ‘no’ answer which does not aid an assessment of a person’s understanding. These are the type of questions asked by a cross-examiner.
A mix may be the best way to obtain information
When ascertaining a person’s understanding, a question like “What do you understand by that?” is preferable to “Is that what you want?”. However, when obtaining instructions, an appropriate initial question may be a closed question, like “Have you done this before (such as make a will, power of attorney, or the like)?”. If the answer is positive, the following question could be “Why are you making changes to that document?”[8]. Accordingly, I disagree with the comment made in Ryan –v- Dalton; Estate of Ryan [2017] NSWSC 1007[9] that:
“In all cases instructions should be sought by non-leading questions such as: Who are your family members? What are your assets? To whom do you want to leave your assets? Why have you chosen to do it that way?”
As the following questions, specific to a power of attorney and suggested by the Queensland Law Society Ethics Centre in its Guidance Statement to witnessing enduring powers of attorney[10], indicate, a blend of open and closed question, leaning heavily in favour of open questions, can be useful:
- What is an Enduring Power of Attorney?
- Why do you want an Enduring Power of Attorney?
- What sort of decisions will your attorney be making for you?
- Can you limit the attorney’s powers if you want to?
- Are you able to give specific instructions to your attorney about decisions to be made?
- What is the extent of the assets over which the attorney will have control?
- How many attorneys can you have?
- Why have you selected this person to be your attorney?
- If you have more than one attorney, who will make decisions concerning you or your finances?
- When will the attorney’s power for financial matters begin?
- When will the attorney’s power for personal matters begin?[11]
- How long does the attorney’s power last?
- Can you change or revoke the Enduring Power of Attorney?
- Is there anything else that will end the attorney’s power?
- What would you do if you didn’t agree with the attorney’s decision?
I have marked the closed questions in italics. Four of the 15 questions are closed questions. About 75% are open questions.
A bad example
In Estate of Stanley William Church [2012] NSWSC 1489 the testator’s solicitor gave the following evidence, which is a paradigm of questioning which should NOT be adopted:
“9. Marjorie left the room and I began discussing the matter of the Will with Stan in the presence of my wife Ann. I said words to the effect of ‘I have drafted a Will for you which I have here, when you spoke to me on the phone you told me that you wanted your sister Marjorie to be your executrix and you were going to leave everything to her, is that correct?’ and Stan either nodded or said ‘Yes’.
- I recollect Stan and I had a conversation in words or words to the following effect –
Me: ‘Do you have a home?’
Stan: ‘Yes’
Me: ‘Do you own any other properties?’
Stan: ‘Yes’
Me: ‘Do you have any investments in the stock market?’
Stan: ‘Yes’
Me: ‘Do you have any cash in the bank?’
Stan: ‘Yes’
(I think I asked Stan how much cash he had in the bank and he gave me a round figure, but I am not completely certain about this now). Stan and I also had a conversation in words or words to the effect of –
Me: ‘Are you married?’
Stan: ‘No’
Me: ‘Do you have any kids?’
Stan: ‘No’
Me: ‘Are you sure you want to leave everything to Marjorie?’
Stan: ‘Yes’
Me: ‘Do you have any other sisters or brothers?’
Stan looked at me for a moment and I said ‘Does that mean you do or you don’t?’ and Stan said ‘Bob’. I recall saying ‘Where does he live?’ but cannot now recall Stan’s answer.
Me: ‘You’ve told me that you want to leave everything to Marjorie but do you want to leave anything to your brother?’
Stan: ‘No'”[12].
A good example
Compare the solicitor’s questioning of the testator in Read –v- Carmody [1998] NSWCA 182, where the testator was found to have testamentary capacity:
Q: “What does ‘N.mid 2152’ mean” to which the deceased replied: “Oh, that’s Northmead.” Mr Brodie then said:
Q: “Who is Robyn Read?” A:” That’s my niece.”
Q: ‘Who are Grahame Wilson and Ken Wilson?” A: “They are my nephews.”
Q: “What are the nature of the assets you’ve got now? I don’t need to know their values necessarily, but I do need to know if there is anything special we should look at.” A: ‘I’ve got a three-quarter share in the block off flats at Harbour Street, moneys on deposit and nothing unusual, by way of assets. I want you to be sure to put in the will that I don’t want the flats sold or disposed of in any way for 6 years after my death. “
Q: “Do you want to have your trustees to have the right and the power to deal with any of the estate assets as they deem fit for the purposes of attending to the affairs of the estate generally and winding up the estate?” A: “Yes that’s what I want them to be able to do but I just want them to hang onto the flats for six years after I die and not sell them straight away following my death”.
Darryl Browne[13]
[1] This can be accessed at https://brownelinkenbaghlegalservices.com.au/safeguards-to-reduce-elder-abuse-setting-up-the-meeting/
[2] This can be accessed at https://brownelinkenbaghlegalservices.com.au/more-safeguards-to-reduce-elder-abuse-conducting-a-meeting/
[3] It is not suggested that there should be open questions used in every circumstance or even in every circumstance where mental capacity is doubted. There will be circumstances where closed circumstances will be appropriate. These are comparatively rare. The default position of open questions is therefore recommended unless it is realised that these will not produce sufficient information to enable a sound assessment of the person’s understanding. See in this context the comments in Effective Counseling of Older Clients: The Attorney-Client Relationship (1995), p18. This can be found at http://www.americanbar.org/content/dam/aba/administrative/law_aging/2012_aging_bookD15289_effectivecounselingolderclients.authcheckdam.pdf (accessed 27 November 2016).
[4] Cf Estate of Stanley William Church [2012] NSWSC 1489, [39] – [40], [43] – [44]; Burns –v- Burns [2016] EWCA Civ 37, [24]; Gray v Taylor; The Estate of the late Stanislaw Zajac [2017] NSWSC 4, [126]; Robinson –v- Spratt [2002] NSWSC 426; Nicholson v Knaggs [2009] VSC 64; Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275.
[5] [2009] NSWCA 58, [65] per Campbell JA with whom Giles and MacFarlan JJA agreed. In Nicholson v Knaggs [2009] VSC 64 a doctor colourfully called this the “Noddy Syndrome”.
[6] As to the need for a solicitor to engage in probing, testing and enquiry to ensure a client has mental capacity, see also Lederberger v Mediterranean Olives Financial Pty Ltd [2012] VSCA 262; Badenach v Calvert [2016] HCA 18, Archer –v- Archer [2000] NSWCA 314; Pates –v- Craig; The estate of Cole [1995] NSWSC 87; Hobhouse v Macarthur-Onslow [2016] NSWSC 1831, [500].
[7] Speech of Justice R I Barrett, Law Society of NSW Elder Law and Succession Committee “Listen to the Judges” series 11 September 2012 available online: http://supremecourt.lawlink.nsw.gov.au/agdbasev7wr/assets/supremecourt/m670001731657/barrett110912.pdf [accessed 11 March 2014].
[8] The reason this enquiry is suggested is explained in McNamara v Nagel [2017] NSWSC 91, as follows: “One issue that is relevant to the determination of whether a testator had testamentary capacity is the extent of any disparity between the testamentary effect of the will in question and an earlier will made at a time when the testator clearly had testamentary capacity. If the new will involves a substantial change in testamentary intention, and the dispositions made by it are not objectively justifiable on the basis of the relationships between the testator and the potential beneficiaries, and the calls that various potential beneficiaries have on the bounty of the testator, those circumstances may support a finding that the testator did not have the capacity adequately to weigh the claims of those who may have claims on the property at that testator’s disposal”: [49]. In that matter there was a substantial departure from the earlier will but this was satisfactorily explained by the intervening death of the testator’s husband which made the earlier will “substantially redundant”: [88].
[9] [2017] NSWSC 1007, [106] – [107].
[10] http://www.qls.com.au/Knowledge_centre/Ethics/Guidance_Statements/Guidance_Statement_No_5_–_Witnessing_Enduring_Powers_of_Attorney
[11] This question is not relevant to a power of attorney made pursuant to Powers of Attorney Act, NSW.
[12] [2012] NSWSC 1489, [40].
[13] Darryl Browne is the principal of BROWNE. Linkenbagh Legal Services. He is an Accredited Specialist in Wills and Estates. He is the Chair of the Law Society’s Ethics Committee. He facilitates the Law Society’s Elder Abuse Working Group. He has been a member (2010- 2014, 2016), Chair (2014) and Deputy Chair (2016) of the Elder Law and Succession Committee. He is a Councillor of the Law Society, a member of the Specialist Accreditation Board, Property Law Committee, Criminal Law Committee, Fidelity Fund Management Committee and Disclosure Committee. He is a member of the State government’s Prevention of Elder Abuse Steering Committee, the Law Council of Australia’s Elder Law and Succession Committee, the Legal Aid Commission Board and the University of Sydney’s Law Extension Committee. He writes bi-monthly Case Notes on wills and estates for LSJ and occasional other articles for that and other journals. He facilitates the Law Society’s online Wills and Probate Procedures for Solicitors. He designed and presents the Masterclass on Powers of Attorney. He is a member of STEP and SMSF Association. The opinions expressed in this article are his own.
