More safeguards to reduce Elder Abuse (Conducting a meeting)

By Browne Linkenbagh in Blog on January 15, 2018

 

In my article Safeguards to reduce Elder Abuse (Setting up the meeting)[1] 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. The article suggested safeguards to be adopted in setting up a meeting with an aged person[2]. But that’s just the start. It’s vitally important to also adopt sound practices for the conduct of the meeting, itself. With that further objective, and relying on court decisions concerning lawyers, I’ve come up with these suggestions for the meeting:

1. Identify yourself

It is important that the aged person knows who you are and what your role is. So, for me, if the aged person is not an existing client and the meeting has been arranged by someone else, I tell them that I’m a solicitor[3]. It is important to ensure that the aged person choses me as his or her solicitor[4], or understands that they may choose their own solicitor[5]. If the position is otherwise the adviser, such as a solicitor, may be considered conflicted and the aged person will probably be treated as not having received independent advice[6].

2. Get the language right

It is vital to communicate with the aged person in a language with which both the adviser and the aged person are conversant[7]. If this isn’t possible, ensure that an independent interpreter translates the conversation[8]. Ensure that the translator has the requisite credentials[9]. In no conceivable circumstance should a person who has an interest in the transaction be involved in the translation[10].

3. Ascertain the aged person’s intentions

It will often be important to allow the aged person to enunciate his or her reasons for seeing the adviser. Ascertaining the outcome which the aged person wishes to achieve by the particular transaction, be it medical, legal[11], financial or other, will usually define the terms of the adviser’s engagement.

4. Explain the legal transaction

There are a number of aspects to this. For a legal transaction it will often involve:

• drawing the aged person’s attention to the effect of the legal transaction[12], both positive and negative[13]. It was said by Street J  in Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30 that it is not textual advice that is needed but advice upon the more general topic of whether the legal transaction should be entered into at all, and, if so, the general nature of the transaction.
• advising as to the propriety of the transaction[14], and warning the aged person against an improvident transaction[15].
• advising the alternatives available to the aged person[16]; and
• advising the advantages and disadvantages[17] of the alternatives[18].

5. Ensure that the aged care understands

It will be crucial that the adviser discuss the relevant issues in a manner which allows the adviser to form an opinion about the aged person’s understanding of the particular transaction[19]. It is necessary to ensure that the aged person comprehends the contents, nature and effect of the relevant documentation[20]. Two comments can be made in this context:

• To assess an aged person’s understanding, an adviser should usually ask open questions[21]. Open-ended questions allow for an evaluation of the aged person’s understanding[22]. Further comments on open questions will be made in a later article.

• In assessing a client’s understanding, the assessment should be approached from the mindset that a client’s mental capacity is presumed irrespective of his or her age, appearance, disability, stated reasons or behaviour.

6. Allow time for cogitation

Some aged persons will want or need an opportunity to reflect on the advice given. Accordingly, 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 his/her leisure[23].

 

Darryl Browne[24]

[1] This can be accessed at https://brownelinkenbaghlegalservices.com.au/safeguards-to-reduce-elder-abuse-setting-up-the-meeting/

[2] The expression “aged person” is deliberately chosen to draw attention to the vulnerability of a person due to age. The vulnerability does not depend on a simple chronological factor though. Some people will display vulnerability at an earlier age than others. Also, the suggestions should be sound when setting-up or conducting a meeting with all persons, irrespective of the person’s age.

[3] Irvine –v- Irvine [2008] NSWSC 592.

[4] Evolution Lifestyles Pty Ltd v Clarke (No 3) [2016] NSWSC 1237; Juzumas –v- Baron 2012 ONSC 7220, [80].

[5] Irvine –v- Irvine [2008] NSWSC 592.

[6] See, for instance, Raoul (by his tutor Karamihas) –v- Hanna [2017] NSWSC 728.

[7] Riz –v- Perpetual Trustee of Australia Ltd [2007] NSWSC 1153; Dellios –v- Dellios [2012] NSWSC 868, [48] – [49]; Matouk –v- Matouk (No 2) [2015] NSWSC 748; Barakett –v- Barakett [2016] NSWSC 1257.

[8] A very good telephone service of this type is offered by Translating and Interpreting Service (T: 1300 304 604 F: 03 9235 3682 E: tis.invoice@tisnational.gov.au W: www.tisnational.gov.au) at a very reasonable cost.

[9] Barakett –v- Barakett [2016] NSWSC 1257, [25], [34]. Someone like a local real estate agent or the spouse of the instructing solicitor should not be used, even though that person may speak the language, unless there is the gravest emergency like imminent death.

[10] Matouk –v- Matouk (No 2) [2015] NSWSC 748.

[11] Winefield –v- Clarke [2008] NSWSC 882.

[12] This can reveal some problems with the transaction. For instance, in Smith v. Glegg [2004] QSC 443 the judge remarked: “documents were so inconsistent with each other that no lawyer could have sensibly explained their combined effect”: [45].

[13] Janson v Janson [2007] NSWSC 1344; Irvine –v- Irvine [2008] NSWSC 592; Winefield –v- Clarke [2008] NSWSC 882.

[14] Janson –v- Janson [2007] NSWSC 1344, [82] – [83]; Riz –v- Perpetual Trustee of Australia Ltd [2007] NSWSC 1153, [116]. The Court of Appeal stated in Aboody v Ryan [2012] NSWCA 395 that “[i]t was part of [the solicitor’s] duty to see that [the client] understood fully the legal and practical consequences of what he was doing”: [78].

[15] Riz –v- Perpetual Trustee of Australia Ltd [2007] NSWSC 1153, [115] et seq; Badman v Drake [2008] NSWSC 1366, [86].

[16] Janson v Janson [2007] NSWSC 1344; Aboody v Ryan [2012] NSWCA 395, [70].

[17] In Riz –v- Perpetual Trustee of Australia Ltd [2007] NSWSC 1153, [128] Brereton J said that “a lawyer giving independent advice is required to address the fairness or reasonableness of a proposed transaction, so that the client can appreciate its disadvantages; if this involves matters beyond the lawyer’s expertise, then the lawyer should seek specialist assistance”.

[18] Janson v Janson [2007] NSWSC 1344; Stivactas v Michaletos (No 2) (1993) NSW ConvR 55-683.

[19] Winefield –v- Clarke [2008] NSWSC 882.

[20] Archer –v- Archer [2000] NSWCA 314, [97].

[21] 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 mental capacity. 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).

[22] Cf Estate of Stanley William Church [2012] NSWSC 1489, [39] – [40], [43] – [44]. In Burns –v- Burns [2016] EWCA Civ 37 the purpose was stated to be to test the testator’s faculty: [24]. In Gray v Taylor; The Estate of the late Stanislaw Zajac [2017] NSWSC 4 the court explained that “testamentary capacity is in doubt, at the very least, a solicitor should ask the testator questions to ascertain the testator’s basic understanding, to gain reasonable assurance regarding testamentary capacity”: [126]. See also Robinson –v- Spratt [2002] NSWSC 426; Nicholson v Knaggs [2009] VSC 64; Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275.

[23] Irvine –v- Irvine [2008] NSWSC 592; Evolution Lifestyles Pty Ltd v Clarke (No 3) [2016] NSWSC 1237, [151]; Hobhouse v Macarthur-Onslow [2016] NSWSC 1831.

[24] 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 and 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.

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