By Darryl Browne in Blog on July 31, 2018

Launch of Richard McCullagh’s book

Darryl Browne recently launched a legal textbook – Australian Elder Law.  He made these remarks:

There are 2 things that can be said about elder law without fear of contradiction:

First, it is a vast and complex subject.

Second, it is not well understood, not least because it probably doesn’t exist.

I wish to expand on both those points, because this book’s importance is framed by that context.  That’s the third thing I want to say: this book is important.

A. Vast and complex subject

In relation to elder law being a vast and complex subject I ask you to bare in mind that it is a subject that requires consideration of legislation as well as 3 of the 5 strands of judge made law:

• The common law;
• Equity; and
• Ecclesiastical law, aka probate law. This is a distinct area of law. (The other 2 are admiralty and matrimonial law.)  The fact that there is a distinct strand for ecclesiastical law continues to be highly relevant today.  It explains, for instance, the different test for mental capacity for wills to every other legal transaction, the different presumption around mental capacity with wills, the different requirements to establish undue influence in relation to a will, the different test for fraud with wills, the different requirement for rectification with wills, and much more.

In relation to the complexity of elder law, think of all the overlapping areas of judge-made law that can be involved:

• Contracts,
•  Property,
• Family law,
• Trusts,
• Agency,
• Leases,
• Tort,
• Succession.

And add legislation on wills, powers of attorney, trusts, estates, superannuation, tax, property, aged care, contracts, pensions, retirement villages, family provision and family law to this mix (And bear in mind that neither list is exhaustive.)  Think how dense some of that legislation is, such as tax and superannuation.

Now add the dynamics of a federation – there are 9 different jurisdictions with 9 different pieces of legislation on many of these topics.

And have I mentioned the potential for:

• offshore assets,
• an overseas domicile, nationality or habitual residency,
• international wills, and
• inheritance tax on world wide assets?

B. Not well understood

My second point is that elder law is not well understood.

The reason why elder law is not well understood may be a matter for debate. But I’d be surprised if there’s anyone who seriously challenges the suggestion that, broadly, it is not well understood.  To my mind the reason is not because it’s not part of the Priestley 11.

For those who are not aware, the Priestley 11 is not the latest team to beat the Australian men’s cricket team.  The Priestley 11 was formulated in 1992.  It refers to the eleven law subjects required to be successfully completed for candidate status for admission into practice as a legal practitioner in Australia.

Elder law, succession, estate planning, guardianship and anything remotely connected to these areas of law are not part of the eleven.  It’s a common refrain that that absence explains the general lack of understanding of elder law.

If that were true, other common areas of practice like:

• family law,
• the law relating to compensation for personal injuries,
• employment law,
• planning law and
• business law

would be poorly understood.  That’s not uniformly the case.  There must be better reason.

The better reason is that, generally, there’s no tax involved with inheritance in Australia.  Death duties were abolished in the early 1980s.  And with it went the incentive for people to be particularly careful with their estate planning.

As a profession we didn’t sufficiently educate the public about the vital area of law, now called elder law.  And if you were wondering where I’m going with this, this is where Richard’s book comes in, because it’s instructive, informative, educational.  But before I get to that, I want to return to my point that elder law doesn’t exist.  I am deliberately being inflammatory but my purpose is to draw attention to the fact that not much of the law is elder specific.

Of course, Richard recognises this. He says that there’s the aged pension, superannuation, retirement villages and age discrimination, these are ‘elder’ specific – whatever an ‘elder’ is – but not much else [1] .
I agree. And I want you to hold that thought because it’s a notion to which I want to return. Maybe it needs to be.

C. Importance of book

My third point, you’ll recall, is that this book is important.  There are a number of reasons.  Let me pick 3.

C1.  Concentrated on 3 main issues:

This text hasn’t attempted to be all things to all kind.  From the vast and complex field of elder law, Richard has concentrated on 3 topics:

• accommodation,
• decision-making agency, and
• remedies.

There are then many chapters exploring each topic in depth.  And it does that Australia wide.  Now, it’s hard enough to master the law in one Australian jurisdiction. Richard, you’ve excelled in looking at each jurisdiction.

C2.  Easy to read format

Secondly, it’s easy to read – it’s easily digestible.  That’s important in conveying a largely alien message:  it needs to be able to be understood.  The main things I picked up on were these:

2.1  The headings are questions

The main headings are questions – “What’s involved in moving?”, “What will be involved having moved?”, and so forth.  Beguilingly simple but, for the reason just mentioned about the complexity of the law, that’s a compliment.

In chapter 3, Income support payments for elders – a topic about which I know little but learnt much, the opening heading is “What questions should be asked of an elder about the pension on moving house?”  There follows a whole heap of questions: “Are you of pension age? If so, ….”, and so on.  That approach abounds.

2.2 Case studies

There are extensive case studies – pretty well every case from the last decade, most from this millennium – at least for a NSW reader, and all the blue-chip cases from yesteryear are referred to, usually with a summary of its facts, the issues of law and the decision.

Tolstoy in Anna Karenina said: “All happy families resemble one another, each unhappy family is unhappy in its own way”: The case studies prove that [2].

2.3 User-friendly format

It’s not heavy going. The text doesn’t present as dense. There’s

• short paragraphs
• lots of headings
• bullet points, and
• diagrams – visual learning

And whilst it’s loaded with footnotes – so if you want to drill down to minutiae, you can – there’s a lightness produced by Richard’s impish humour. For instance, he writes that elder law is in its youth [3].
He says this: “A granny flat arrangement…is the Gordian Knot of elder law, a tangled web of intricately connected legal issues where the apparent resolution of one may trigger another” [4].
He refers to an essential element in proprietary estoppel as being the ‘rip-off’’ [5].

C3. Its Practical

The book’s opening sentence describes it as a legal street directory written for the first level of legal triage.  I take this to mean the solicitor with daily or regular interaction with elderly and often vulnerable clients.  And, to implement that theme, the book offers many handy hints.

For instance, it says that:

3.1  Extra Legal costs should be charged for legal work with a retirement village contract – The fees of the elders’ solicitor or conveyancer should be 20-30% higher than a conventional residential conveyance” [6].

3.2  Arrangements should be made about re-payment of a RAD “If one party, or another member of the family such as a child, provides the whole ingoing contribution, a loan agreement should be entered into secured by a mortgage          registered over the lease ” [7].

3.3  Rents for manufactured homes are unregulated Richard points out that rent increases for manufactured homes are largely unregulated. “For elders on fixed income, this may be a most unwelcome development and even difficult to sustain” [8].

3.4  Deeds should record granny flat arrangements “So that the agreement enjoys a limitation period of 12, rather than 6, years in some jurisdiction, it should be in the form of a deed” [9].

3.5  Simple changes can affect government entitlements “If the parent transfers his or her home worth $800,000 to the child

• for $1, this may result in a deemed gift of $799,999, …
• for natural love and affection”, there will be no deprivation” [10].

By the way, these instances are just 5 I’ve picked form the first 150 pages. There are many more.

Then there’s a long list of suggested questions to ask clients. These are very practical, very useful. In fact they should be turned into a checklist for practitioners.

D. Elder law should be elder specific

I want to conclude by returning to a fourth point I mentioned earlier, that elder law is not really ‘elder’ specific, but perhaps it should be.  One of the reasons I’ve tried to promote an extension of the forfeiture rule to disinherit perpetrators of elder abuse is that it is specifically targeted to address that problem, elder abuse.  One of the reasons I have reservations about a compulsory online register of enduring powers of attorney is that it is a broad reform which isn’t directed solely at the elderly and isn’t likely to address the problem of elder abuse.

In fact, its features – online register, compulsory, and cost – seem targeted against the elderly who probably have less tech knowledge to register an enduring power of attorney online, where time is more likely to be of the essence, and where increased cost is more likely to be a disincentive to making appropriate arrangements.

So, perversely, it seems a reform that could produce more informal, unsupervised arrangements, which are more likely to facilitate elder abuse and which are less amenable to supervision.
But this is a debate we should be having.

We should debate:

• whether the tax system could be deployed as a disincentive to elder abuse
• whether the relationships which create a presumption of undue influence should be expanded to include transactions where the parent benefits the child, as Richard infers [11] . Currently there’s a presumption if a child benefits the parent, but not the reverse.
• whether fiduciary duties should be prescriptive as occurs in Canada, as Richard mentions, and the US, and not simply proscriptive as Australian law currently states [12]. Now the change would be momentous. It would mean that an attorney who knew that the principal was not acting in his or her best interests – for instance, by improvident spending – would have an obligation to act.

The point I’m making is that these ideas, and others, deserve serious debate. As I’ve suggested, Richard’s book will aid that debate.  So it is not just as a street directory but as a beacon that Australian Elder Law should be prized.

I heartily congratulate Richard on this work. It is with great pleasure that I launch it.

To listen to Darryl Brown click here.  Darryl’s content begins at 4.30 minutes.

 

[1]  Australian Elder Law, p4.

[2]  Maria Saravinovksa v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 6) [2016] NSWSC 964, [2].

[3]  Australian Elder Abuse, page 8.

 

[4]  Ibid, p129, [8.10].

[5]  Ibid, p454, [23.50].

[6]  Ibid, p87, [6.360].

[7]  Ibid, p102, [6.860]; p184, [9.720].

[8]  Ibid, p125, [7.480].

[9]  Ibid, p136, [8.250].

[10]  Ibid, p147, [6.610].

[11]  Ibid, p434, [21.460]; p463, [23.270]; p451, [22.450]

[12]  Pilmer v Duke Group Ltd (In Liq) [2001] HCA 31; 207 CLR 165; 75 ALJR 1067; 38 ACSR 122, [74]; Australian Elder Law, p366, [19.30].

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