COTA organised Dying to Know Day (August 8th) COTA under the auspices of North Sydney MP, Kylea Tink. NSW member and dying well advocate Jill Nash co-organised a fantastic line up of speakers to discuss Death, Dying and Grief.
Jill spoke poignantly about the loss of her baby daughter and then her husband when she was just 41. Informed by these traumatic experiences, Jill is taking control of her future by gathering information and documents and starting personal conversations now, so that her family are prepared for her death and dying when the time comes.
Alice Mantel, another COTA NSW member, also shared her specialist legal expertise on how to go about getting your affairs in order many years before you may think you will need to.
Alice is also the featured expert in the Planning for the Unexpected series produced by OWN NSW.
Category: legal issues
Over half a million older people experienced abuse in the last year
Latest data released by the Australian Institute of Health & Welfarehttps://www.aihw.gov.au/family-domestic-and-sexual-violence/population-groups/older-people#:~:text=In%20institutional%20settings%2C%20Yon%20et,and%20sexual%20abuse%20(1.9%25). (AIHW) has made some key findings that show people in Australia are at increased risk of abuse in their later years. This abuse can take many forms, including psychological or emotional abuse, financial abuse, physical abuse, sexual abuse, and neglect.
Key findings of the most recent data:
- 1 in 6 (15% or 598,000) people in Australia experienced elder abuse in the past year.
- psychological abuse is the most common form of elder abuse.
- 1 in 2 people who perpetrate elder abuse are a family member.
- 1 in 3 people who experienced elder abuse sought help from a third party.
As Australia’s population ages, the number of older people in Australia experiencing abuse is likely to increase over time. A key aspect of the definition is that elder abuse occurs in relationships where there is “an expectation of trust”. Such relationships include those with family members, friends, neighbours, and some professionals such as paid carers.
Prevalence estimates are likely to underestimate the true extent of elder abuse. This is because victim-survivors can be reluctant to disclose ill-treatment by a family member, or because they are dependent on the abuser for care. Older people with cognitive impairment (for example, dementia) or other forms of disability may also be unable to report abuse.
Evidence from international studies show that abuse estimates are higher for older people in institutional settings than in the community. A 2017 review found that there is a greater likelihood for women being abused (17%) than men (11%) with sons also more likely to perpetrate abuse than daughters.
What kind of abuse is perpetrated?
The AIFS National Elder Abuse Prevalence Studyhttps://aifs.gov.au/research/research-reports/national-elder-abuse-prevalence-study-final-report estimated that, in 2020:
- around 1 in 6 (598,000 or 15%) older people living in the community had experienced elder abuse in the past year
- 471,300 (12%) had experienced psychological abuse in the past year
- 115,500 (2.9%) had experienced neglect in the past year
- 83,800 (2.1%) had experienced financial abuse in the past year
- 71,900 (1.8%) had experienced physical abuse in the past year
- 39,500 (1.0%) had experienced sexual abuse in the past year
- a slightly higher percentage of women than men had experienced any form of elder abuse in the past year. This pattern was also evident for psychological abuse and neglect.
Who are the perpetrators?
Around 1 in 2 (53%) perpetrators of elder abuse were family members (includes ex-partner/spouses). Perpetration by family members was highest for financial abuse (64%) then neglect (60%), psychological abuse (55%), physical abuse (50%) and sexual abuse (15%). Sexual abuse of older people was primarily perpetrated by friends (42%), acquaintances (13%) and neighbours (9%).
Support for abused persons
The AIFS study estimated that:
- 1 in 3 (36%) older people in Australia who experienced abuse sought help or advice from a third party such as a family member, friend or professional;
- help seeking was most common after physical abuse, followed by psychological abuse, financial abuse, sexual abuse and then neglect;
- of those seeking help, the most common sources of help were family members (41%) and friends (41%), followed by a GP or nurse (29%), a professional carer (24%), the police (17%) and lawyers (15%). Around 1 in 20 (5.3%) contacted a helpline.
Around 8 in 10 (82%) older people who experienced abuse had taken action to stop the abuse from happening again. These actions included informal actions (such as speaking to the person) and formal actions (such as seeking legal advice). The most common actions were speaking to the person or breaking contact with them.
If you, or someone you know has been abused, you can call 1800 ELDERHelp.
Tune in to this series of podcasts – Planning for the Unexpected
Join me and my co-host Amanda Armstrong as we take you through this series of six podcasts which can help you to be better prepared for those unexpected life events.
Podcasts can be found on YouTube.
This series is presented on behalf of the Older Women’s Network.
Death is of course, inevitable, but often it is unexpected. Most of us would rather not think too much about it. But planning for the unexpected can be liberating. It allows you to enjoy life because you have removed a future burden for yourself and your loved ones.
This new series from OWN presented by family lawyer Alice Mantel will take you through what you need to organise before you die, from writing a will, family conversations and decluttering. It can be a baffling area, and easy to put in the too hard basket for now. This practical and reassuring series will break down the steps and give you tips to approach planning for the unexpected in a positive and proactive way.
Preparing for the unexpected – Wills, Power of Attorney, Enduring Guardianships and more – Episode 1.
The gentle art of decluttering – Episode 2
https://www.youtube.com/watch?v=C9TkNtu2WMA&pp=ygUacGxhbm5pbmcgZm9yIHRoZSB1bmV4cGVjdGU%3D
How is your financial health – Episode 3
Suddenly single – Episode 4
https://youtu.be/trNaxaNIjJA
Caring for elderly parents – Episode 5
Planning for the Unexpected: Finding Your Forever Home (or Downsizing made easy) – Episode 6
Separated? Why you need to review your Will
Scanlan Carroll Lawyers, Carol Pagès
If you have recently separated, your focus will likely be on what to do about the property you have with your ex partner, and arrangements for your children.
So why do you need to think about your Will?
If you have a Will, it may be that each of you and your ex partner have left everything to each other, and then to your children.
If you are separated, it is important to take the time to review all of your estate planning documents – this includes your Will, your Powers of Attorney, and your Binding Death Benefit Nomination of your superannuation fund.
Each of these documents is explained below:
Your Will – your Will sets out how you would like your assets distributed when you die and who is responsible for carrying out your wishes. You can also include clauses such as your nominated guardian for children under 18, and specific gifts that you would like to make. In your Will you specify who will be your executor. Your executor stands in your shoes when you die, and they will carry out your wishes by calling in your assets and distributing same to your chosen beneficiaries.
Enduring Power of Attorney – While you are alive, your attorney is able to stand in your shoes and carry out financial transactions on your behalf using the power – this can be buying or selling property on your behalf if you are away on holidays, transacting on your bank account paying your bills for you, and so on. Your nominated attorney can also make personal care decisions for you – such as choosing a care facility if you are unable to look after yourself, or limiting or restricting a person from visiting you if they consider this is not in your interests.
A separate medical decision maker (which can be the same person) will be able to make medical decisions on your behalf, such as consenting to surgery if you are unable to. As the powers are enduring, they continue even if you later suffer an illness or injury which means you are unable to make decisions for yourself.
Binding Death Benefit Nomination (BDBN) – many people have significant balances in superannuation and also life insurance policies attached to their funds. As part of your estate planning process, we provide you with advice about your BDBN as superannuation is generally considered to be ‘outside’ of your estate and what is covered by your Will. It is important that this valuable asset is passed on to your loved ones in the way that you intended.
Why is this important?
Separation does not trigger the end of your existing Will, Powers of Attorney or BDBN. Many people are surprised to learn that divorce does not invalidate your Will. Divorce revokes a gift to your former spouse or appointment as your executor, and remarriage can invalidate your Will save for references made to your current spouse.
What if I don’t have a Will?
If you don’t have a Will, your assets will be passed on to your relatives according to the rules of intestacy. The rules in Victoria are that if you die, your estate goes to:
Your spouse or domestic partner if you have no children;
Your spouse or domestic partner, if you have children with that partner;
If you have children to a previous relationship, your spouse will receive a statutory legacy (currently $480,700), your personal possessions, and 50% of the balance of your estate. Your children will equally share the remaining 50% of your estate.
Case study – who inherits?
Alex separated from Danielle three years ago. They were married however had no children. They were able to resolve their family law property division fairly amicably, and finalized their family law case with Consent Orders dividing their property.
Alex and Danielle prepared their Wills when they were first married 10 years ago, each leaving their estate to the other.
Alex has re-partnered with Mary, and they have been together for 20 months.
Alex and Danielle haven’t yet filed for divorce as they have not gotten around to it yet. Alex has the forms on the kitchen table to sign.
Alex tragically dies before signing his divorce form.
Who do Alex’s assets go to………..?
Depending on a number of factors – it’s Danielle – his former wife.
The gifts to Danielle in Alex’s Will are not revoked as they are not divorced.
If Alex owned property such as a house with Mary, and the house was in joint names – the house would be outside of Alex’s estate and pass straight to Mary.
What if Alex didn’t have a Will?
Based on the length of the relationship with Mary (along with several other factors which would need to be taken into account under the Family Law Act 1975 (Cth)), Mary is not likely to be considered a spouse.
Danielle is still Alex’s legal spouse, as they are not divorced, so Danielle receives Alex’s estate.
Summary
Mary may have grounds to make a claim in either scenario, but this can be a long and expensive legal process which no one wants to go through after the loss of a loved one.
The above example shows that how an asset passes on after death can depend on a number of factors. To ensure that your wishes are as you intended, it is important to obtain advice in relation to your family law and estate planning matters.
This is important at separation, and the time following separation – for example, when you re-partner, it is worth considering the impact of your new relationship and property ownership upon your children, and your new partner.
Incapacity: Choose Who Makes Decisions for You
By Russell Kennedy – Clare Hesbrook and Ilana Kacev
Estate Planning isn’t just about your Will, equally important are the documents in which you choose and who makes decisions for you if you lose capacity during your lifetime.
Choose Who Decides If you want to choose who makes decisions for you regarding your finances, property, lifestyle and medical treatment, it is essential that you have in place:
• An Enduring Power of Attorney and an Appointment of Medical Treatment Decision Maker (if you live in Victoria); or
• An Enduring Power of Attorney and an Appointment of Enduring Guardian (if you live in New South Wales).
Losing capacity
Currently it is estimated that almost half a million Australians are living with Dementia and these numbers are expected to continue to rise. Aside from Dementia, there are many other reasons why you may lose capacity to make decisions for yourself.
Public Trustee & Guardian appointments
On 14 March 2022, Four Corners aired an episode investigating the difficulties encountered by those who did not have these documents in place, at a time when they were deemed to have lost capacity. The Public Trustee & Guardian were appointed to take control of their finances and make decisions about their lifestyle, including where they lived.
The Four Corners episode highlights the importance of proactive estate planning and especially, making arrangements in the event of your future incapacity.
What it means when you have a Power of Attorney and Appointment of Enduring Guardian/Medical Treatment Decision Maker in place:
1. You decide who makes decisions about your money and lifestyle. You can choose the people who care about you and respect your values.
2. You decide how your chosen attorneys and guardians act and when their powers come into effect. You can provide directions about how they should act in end of life care decisions for example.
3. You preserve your wealth. A public trustee and guardian takes payment for their services from your assets. When you choose your own attorney and guardian (unless you choose to appoint a professional attorney) you do not generally pay for acting.
Taking positive action to put your estate planning affairs in order means that you get to decide who makes decisions over your life, rather than having it decided for you.
FIRST NATIONAL STUDY FINDS MORE ELDER ABUSE
In the year prior to the first national survey conducted into elder abuse, one in six older Australians reported they had experienced abuse most often committed by family members.
The National Elder Abuse Prevalence Study (NEAPS) survey, carried out between February and May 2020, showed that the most common subtype was psychological abuse (12%), followed by neglect (3%), financial abuse (2%), physical abuse (2%) and sexual abuse (1%). Some of the 7,000 participants aged over 65 years reported several types of abuse occurring, usually psychological abuse and neglect.
Types of elder abuse
Nearly one in five elder abuse perpetrators are children (18%), or their partners or grandchildren and about one in 10 elder abuse perpetrators are intimate partners. Children (most often, sons) are most likely to perpetrate financial abuse as well as friends and service providers.
Children are also the largest group of perpetrators of psychological and physical abuse while friends, acquaintances and spouses were most likely to perpetrate sexual abuse.
Children and intimate partners are both significant perpetrator groups (24-25% for each) of neglect. Professional carers (14%) and service providers (13%) are bigger perpetrator groups for neglect than for other abuse subtypes.
Psychological abuse is not always recognized by either victims or perpetrators. It includes insulting, belittling or threatening behaviour towards a person. Family and friends are the best protection for a person experiencing abuse rather than the person who is unlikely to directly confront the perpetrator.
Factors that increase risk of abuse
While women were slightly more likely to be the subject of abuse than men, other factors increased the risk of experiencing abuse, namely, being poorer, being single, separated or divorced and living in rented housing or owning a house with a debt against it. Having poor physical or psychological health also increased the risk of experiencing abuse.
The study did not include people living in aged care or suffering cognitive decline which could increase the identified prevalence of elder abuse in the community.
The federal government has announced additional funding to build on the National Plan to Respond to the Abuse of Older People. This announcement follows on from recommendations made by the Aged Care Quality and Safety Commission to increase funding to home care packages and create new training places for aged care staff.
AIFS, National Elder Abuse Prevalence Study, https://aifs.gov.au/publications/national-elder-abuse-prevalence-study
LEAN IN AND LISTEN!
Welcome to the Baby Boomers Guide to Life in the 21st Century!
Produced by Jeffrey Furolo and hosted by Lex Marinos and Patricia ‘Little Pattie’ Amphlett, the Baby Boomers Guide is a radio series that can be heard on community radio station, Radio Skid Row.
The team has completed two seasons of radio programs, and most recently, a 34 session season of topics aimed at listeners over 55 years. Topics covered include: Health Services & Ageing in Australia; Sexuality, Relationships & Ageing; and The Brain & Ageing.
Based on my legal experience, I chatted with Patricia in the Two Cents Worth segment on three important topics:
Wills and inheritances: https://babyboomersguide.com.au/episode/s2-e1-ageism-discrimination-stigma/
Divorce & separation in later life: https://babyboomersguide.com.au/episode/s2-e5-intergenerationality-ageing/
Powers of an attorney: https://babyboomersguide.com.au/episode/technology-ageing-in-australia/
The series began with an interview with Australia’s first Age Discrimination Commissioner, the late Susan Ryan. Other notable speakers include former NSW Legislative Council MP Meredith Burgmann; and Deputy Commissioner of the ACCC, Delia Rickard.
Podcasts of the programs are available on the Baby Boomers Guide to the 21st Century website at https://babyboomersguide.com.au/episode/technology-ageing-in-australia/.
Season 2 is proudly supported by Older Women’s Network NSW and Ecstra Foundation.
Retirement village exit rules changed
New legislation means that NSW retirement village contracts will now include a timeframe that ensures timely payments for a former resident’s exit entitlements.
These changes apply only to registered interest holders with a long-term registered lease that gives them at least 50% of any capital gain.
They do not apply to:
• registered interest holders who own a lot in a strata or community scheme village or own shares in a company title or trust village that gives them their resident right; or
• unregistered interest holders.
New retirement village laws started in January 2021. The changes reflect complaints made about how exit entitlements were previously managed and provide a timeframe for former residents to receive their exit entitlements. Summarised, the changes:
• enable residents to receive exit entitlement money before their unit sells (if the sale has been ‘unreasonably delayed’);
• provide an option for residents to fund their move into aged care by accessing part of their estimated exit entitlement money;
• ensure residents no longer have to pay ongoing charges for general services for more than 42 days after they leave the retirement village (commences on 1 July 2021 onwards).
New legislation has been introduced which affects existing and all new retirement village contracts. Previously registered interest holders had to wait until a new resident either moved into or leased their old unit before they were able to receive their share of the sale proceeds (the “exit entitlements”). This could mean that if the village operator delayed the sale of a unit after the resident left, the former might not receive their exit entitlements for anywhere between two and five years.
Under the new legislation, a registered interest holder can apply to the Secretary of the Department of Finance, Services and Innovation for an exit entitlement order directing the village operator to pay the exit entitlements to the former resident even though the unit has not sold. The order can require payment after six months for Sydney metropolitan, Wollongong and Blue Mountains residences and within one year anywhere else in NSW. This order will only be made if the village operator has “unreasonably delayed” the sale considering the time taken to refurbish the unit and whether the operator as selling agent has performed all their duties within reasonable time.
Such an application can only be made by a former resident but not their estate. If the order is made, the exit entitlement must be paid with 30 days of the order.
If the registered interest holder moves out of the retirement village into a residential aged care facility and has not received their exit entitlement, the resident may ask that the operator make one or more daily accommodation payments to the facility on behalf of the resident within 28 days of the resident’s request. As more than 60% of residents move directly into aged care, their move can be delayed if they do not have access to funds to pay the daily accommodation payments to the facility and the unit does not sell quickly. These amendments are intended to make the transfer easier for residents and family members.
For more detail, see Fair Trading website, https://www.fairtrading.nsw.gov.au/about-fair-trading/legislation-and-publications/changes-to-legislation/changes-to-retirement-village-laws
Author talk at Dennis Johnson Library Stanhope Gardens
Come along to join in the retirement conversation on
At the Dennis Johnson Library, Cnr Stanhope Parkway & Sentry Drive, Stanhope Gardens, NSW 2768
Women experience retirement differently to men. Women generally live longer, have less money and volunteer more than their male counterparts. A practicing lawyer for over 30 years, Alice Mantel encourages making better decisions, giving advice on topics such as:
Inspiring women to make the most of their retirement opportunities, Every Woman’s Guide to Retirement encourages an active, connected lifestyle, staying healthy, lifelong learning, de-cluttering, and even online dating to make the most of this time.
Dive into something new
