Transcript: Minding the money: Families and the management of older people’s assets

AIFS seminar: Minding the money: Families and the management of older people’s assets - Thursday 17 October 2013

Audio transcript (edited)

The following audio presentation is brought to you by the Australian Institute of Family Studies as part of our monthly seminar series in which we showcase national and international research related to the family. The seminars are designed to promote a forum for discussion and debate. They are open to the public and free of charge.

Seminar facilitated & speaker introduced by Dr Rae Kaspiew

Associate Professor Cheryl Tilse

Thank you Rae, we really appreciate your instigation of this seminar and one of the things that Jill and I have been very much aware of is when you talk about older people and their money it's a family matter. So we've actually been on the hunt to come and talk to the Institute of Family Studies to talk about some of the findings we have around money, assets, decision making within families because families report a lot of what works well and the court of what works very badly in terms of older people and substitute decision making and assets

We hope to do a slightly joint presentation, I will run through very quickly the research program, I don't want to get bogged down in methodology, I don't think you've come to hear the fine details of that but we're very happy to answer questions about that. But we primarily want to talk about what have we found, you know, we've been doing this for 13 years and it's ongoing believe it or not, we're putting in two more grants. So it's really trying to pull out some of the key findings and say well what does that mean for policy and practice. So we're delighted to be here and thank you for coming.

First of all I'll talk about our research program. The drivers for this, we started back in 1999 in the School of Social Work and Human Services at UQ and the drivers came from a number of things seemed to come together for us. I mean partly I was in the school with Jill and another colleague Debra Setterlund who were very interested in older people. But Jill is running a student unit, a social student unit and from that became very much aware of some pretty poor decision making around older people, how their assets were managed, how decisions were made about who went into residential care and who had a say and all of that.

So she came very much from practice background, we were all aware of the Enduring Power of Attorney legislation that came in in Queensland in 1998. And we were concerned about it saying is this really - it's very good in making it easy for families to become substitute decision makers but it's very poor in terms of what mandate it gives families to take over and actually mismanage assets or misuse assets.

We were also aware at that time of the policy shifts in terms of the reform of aged care with the Aged Care Act 1997, looking at much more around self provision of older people, expectation of contributions to care and a need to conserve their assets to pay for care. And from our work we were very much aware that lots of older people and their families hadn't got this, that they believed it was really good to strip assets and get pensions rather than conserve assets and look at I need to look to a greater period of life in older age and greater financial contributions and choice around care.

We're also aware there was changing perceptions of older people's assets that most people in the older cohort are homeowners and that the property values was very much changing and so suddenly the family home which had become an asset became a very valuable asset, you know, the fibro shack on the beach suddenly became millionaires row and people got very interested in who's going to have this and how the family is going to - who owns it. So they were the sort of triggers we had and we starred on this research program, which has kept us busy for many years.

I think the key things about the research program, we call it the Ageing, Assets and Intergenerational Transfers Program, is it's interdisciplinary, in fact we came from social work and social policy but clearly it has an economics focus, a law focus, I think that's all is it, psych, yes we've got the neuro-psychs in terms of looking at capacity. But we've been very keen. We've also looked at - worked with speech therapists and audiologists at times. So we've been very keen to have a multidisciplinary focus on it saying you really have to bring together a whole range of views to understand the issues.

We've had multiple projects using multiple methods so we've gone from big broad population surveys across Australia to in-depth interviews with older people saying, "Well what do you want, how do you want people to be involved in your assets?" We've also done case file reviews and secondary analysis of data and now with our legal colleagues are doing much more analysis of legal cases of contests over assets or wills. We were keen to have diverse participants and perspectives, we were very keen to say well older people are one focus but also service providers and family members - sorry I need some water.

We started on financial abuse because that was something of great concern to us but we moved fairly quickly from that to say if you really want to understand financial abuse in families, you actually have to say who's managing the assets - by assets we mean income, property, things of financial value. But if you really want to understand financial abuse you really have to have a look at how families engage with older people's assets and what attitudes and values they have around them as well as the practices.

So although we begin with financial abuse and we've still got a lot to say about financial abuse, we went much more broadly to asset management which led us into who's making the decisions and looking at particularly misuse of Enduring Power of Attorney, but also substitute decision making, how people particularly family members make decisions for and with older people and became very much aware of how substitute decision making became the default kind of approach and that although all the legislation says that it's a least restrictive alternative and that you should go for assisted decision making first, somewhere along the line with a lot of practices we've lost sight of that and how to do that.

So we got very interested in substitute decision making which of course leads you into what are issues of capacity, how do you understand financial capacity, you know, that you can have the capacity to know whether you want to buy a new tracksuit but may - whether or not you should sell your BHP shared or not, well who knows that anyway these days. But there is a whole range of levels of tasks and we need to understand financial capacity in that context. That led us into our more recent work of saying well what was underpinning some of these things that we saw in the asset management were attitudes toward intergenerational transfers.

And one of the big intergenerational transfers of course is a will, an inheritance. So it led us into looking at wills and inheritance and how people manage that and that's our current project with the public trust - seven Public Trustees across Australia. We're also looking about contests, what are the attitudes that underpin contests of wills saying, "I deserve, I'm entitled to some of this money" So that's the projects or the overview. I should acknowledge that we've had multiple partners and funding and that we've also had some funding from Hong Kong and replicated some of our work in Hong Kong with the University of Hong Kong which has really been very interesting in looking at some of these issues in a very different cultural context.

But as you can see we've had lots of industry partners through ARC linkage grants and through government and through non government organisations, we've done quite a lot of work in how does this play out in residential aged care and so we've worked with aged care providers. Am I going too fast, I'm just trying to get the methodology stuff over so we can get to the results. I've talked about our core areas of interest and I will just very briefly sort of show you some of the projects that we've done just to establish our credibility I guess for saying some of the things we have to say in terms of findings.

The first study on financial abuse is an in-depth study of practitioners' identification and actions in relation to financial abuse. So we did that with case scenarios and asked social working community nurses to say well this is abuse or is it not abuse and what would you do in relation to this. And I should say when we say abuse we focus only on financial abuse, we're not talking about other forms of elder abuse. We did a statewide survey of aged care workers and looked at their identification and responses to financial abuse.

We did an analysis of the Guardianship Tribunal files in Queensland where we wanted to look at what were the patterns of financial abuse for older people with impaired capacity because this was a group we couldn't interview so we had to use the tribunal files to say can you predict. And you probably won't be surprised when we talk about some of the findings of these but the best predictors of financial abuse for a person with impaired capacity is having adult children and access to assets either formally or informally. Formally through Enduring Power of Attorney, informally through I've go your key card and you number. And then we've looked at responses to financial abuse in residential aged care, what do people - how do they recognise it.

One of the issues of course with financial abuse is it can be quite invisible and in residential aged care I think one of the few triggers for bringing it to light is really if you stop paying the bills but if you continue to pay the bills all sorts of things can happen that really isn't visible. Financial abuse is something also that can happen from a distance, you can live in New Zealand and financially abuse your mother in Melbourne if you've got access to the assets. So it doesn’t depend on being there. Mind you co-residence is also one way to financially abuse, move in et cetera, I shouldn't go onto findings. Thank you Jill, I'm much more interested in findings.

Asset management, we did - this is a very early survey we did which really surprised many people, with the Public Trustee of Queensland, the Guardianship Tribunal, Adult Guardian, Public Advocate in Queensland the Seniors Interest Branch. An Australia wide survey with a representative sample looking at asset management practices, you know, "In the past year have you had any involvement with an older person's finances, what have you been doing?" I won't give the results.

In-depth interviews, we then see after that well you know, national telephone surveys give you a broad picture but they don't give you much about individual practices, so we did in-depth interviews with asset managers and older people having their assets managed. And this was a really nice way of getting into risky practices, you know, that you don't go in saying, "Are you financially abusing your relative" but you do say "Well what are your practices, can you tell us about how you manage assets?"

We looked at service providers, particularly Public Trustees in regional areas, and we did case studies and interviews and surveys of aged care facilities looking at asset management practices in relation to residents and recognition of abuse in aged care. We then about 2005 decided to take the results of this into the field and did a community project in Redcliffe in Queensland, it's just over the bridge from Brisbane, trying to see if we could enhance education, information and referral networks. Very much interested like the Seniors Rights people in Victoria have been doing, of trying to get education around how to use powers of attorney appropriately but also what are the alerts that older people should think about when other people get involved in their assets. And then we did this study in Hong Kong.

In the area of capacity and decision-making we're on an NH&MRC dementia grant that's just finished, trying to look at assessing capacity for financial decision-making and how does that work. And one of the outcomes of that has been a DVD with a whole lot of scenarios with professional actors and talking heads like Jill and myself. We looked at knowledge and use of Enduring Powers of Attorney in residential care and a big project for the Department of Justice and Attorney-General in Queensland say, access to usability of Enduring Power of Attorney and advanced health directives, that when you look at the forms do they work in the way they're supposed to, do they enhance accountability of attorneys, do people know actually what they're doing with these mandates they give people.

Our latest features and ongoing ventures I guess are saying well we've gone up a level and sort of saying well let's look at intergenerational asset transfers and we've got this big project with seven Public Trustees, that's got four stages in it looking at making and challenging wills. We did a Queensland project that was very interesting and it really acted as a pilot for the national project. But one of the interesting features of that was to look at indigenous Queenslanders and their attitudes towards wills and Enduring Powers of Attorney and advanced health directives. What was very interesting about that was we did - we were very fortunate in having one of our PhD graduates who's an indigenous woman do all the interviews for that and she did a lot in the Torres Strait so we have quite a lot of understanding of some of the issues of the Torres Strait and how they differ from Aboriginal Queenslanders, Murri Queenslanders.

So this project is ongoing, we're looking at contests over wills and we'll talk to you about some early results from that, it's halfway through. We've got some results from that, and this is what we've been interested in lately, that one of the things that have come out of some of these projects and also out of practice is when you have a child with an impairment in decision making for example as a result of an intellectual disability and you're an ageing parent, how do you make provision for that child, is a will sufficient, do trusts work, do people get good advice, is it good enough to say, "Well I'll leave all the estate to two of the kids and this third child can go on a disability pension", is that good enough, will that work, or you know, people will make promises. So this is the area that we're interested in but we haven't got any data on that so I can't talk about that one.

Our framework of understanding, so what we always call minding the money, but we understand that what happens around money and older people is really embedded in the social policy and cultural context, that it isn't just about minding the money, it is about these broader cultural attitudes. Firstly towards money in families, and secondly towards older people. And then when they come together in terms of your attitudes towards older people and their assets, who owns them and that's where we're going to have quite some discussion I hope, whose money is it. This is very important to understand.

And embedded in the changing expectations and competing interests in the assets, you know, whose money is it comes again, and service providers think you should be paying for care, the government thinks you should be conserving money for retirement income, family generally thinks it's theirs to inherit and the older person can be seen as a hedonistic user if they're a grey nomad, or a very sensible squirrel to put it away and save it for your family.

So changing expectations and competing interests we would argue can result in a whole lot of challenges to good practice and misuse of substitute decision-making. Families are central to what happens, that in our culture I guess money is a family business, a family matter, and that families are involved in the every day activities of managing money, they're involved in expectations about intergenerational transfers. They're the most common appointments as substitute decision makers either formally or informally, if you go to hospital as an older person it's usually your son or your daughter who has to manage the finances for you. But it's also in the context of changing family structures and relationships, families have got more complex - yeah, this is an audience I don't have to say that to I guess. And so this combined with this and this you know. Leads to a very volatile situation and we're certainly seeing it in the wills project, of who inherits.

Changes in substitute decision making legislation has been around for over a decade now across all of the States I think, I'm not sure, has Tasmania changed theirs, not sure, anyway. There are some questions about how well people really understand it and how effectively it's used. So that's where we come from, sort of these kind of broad areas that we can see a logical connection between and these are some of our key findings. Come and join me, I think Jill hasn't come for the ride; we're going to try and do this together.

Key findings are asset management in families, high level of interest and involvement, that national survey we did in 2002, one in four people said, "I've had some involvement in an older person's assets in the last year". And helping them manage for whatever reason, most commonly adult children, no surprises there. And it was an early task of providing care, as some older people needed help, one of the first things that people started helping with was money, managing money, either shopping, banking, those sorts of areas. And it's not only as a result of cognitive incapacity, that there were lots of reasons why older people wanted help. Some of it was physical frailty, "I just can't get out to the bank" or "I can't read the bank statements", "I can't communicate, I've had a stroke, I can't communicate". So it’s not just about lack of cognitive capacity but a whole range of reasons why people may not be able to manage their assets. Jill.

Professor Jill Wilson

I think the interesting point in relation to asset management in families is thinking about from a practice point of view, often families are quite happy to leave the neighbours doing a lot of help around the edges but the minute money rears its head, the family reappears. And this suggests that it is a family matter, that culturally it's a family matter and that perhaps the old person isn't interested or isn't prepared to talk to others, but it certainly carves asset management out as a care task that is particularly the province of families. And this is very clear when we start looking at residential aged care as well.

Tilse

I guess the key point that came out of the asset management studies was asset management practices vary as do families, depending on the complexity of tasks, sometimes it was just shopping and banking, other times it was, "Should we sell the shares, should we sell the house, what should we do with the beach house?" So they vary in terms of complexity of tasks. But they also vary the practices that families used and others, from whether it was just informal and it was just an exchange of money and, "I'll take your card down to the ATM and get some money out for you" or more commonly Coles these days. Or semiformal where you had an arrangement with the bank either through a joint account or a nominee arrangement or something like that, or you had a more formal arrangement as an attorney under Enduring Power of Attorney or being appointed administrator.

What we found was most commonly asset managers used the informal mechanisms, they weren't using the formal ones often even if they had them, and that a lot of that was done through net banking, linking accounts and net banking. And a lot of it is not very visible of what decisions are being made. Jill.

Wilson

I think when we did the 2002 study, it was amazing to us in the interviews what people said they were doing and in a way that you know we were feeling fairly shocked that they would make these decisions about other people's assets but they thought it was fair enough. And just the fact that we did ask them about how they managed assets for and with older people meant that the lid came off in terms of talking about both the - in this context the extreme lengths some family members would go to, you know the hours they would spend explaining and taking notes and following through and the extreme patience they demonstrated on the one hand. And on the other hand people sort of saying, "Oh well we've just used mum's money" - and this was true - "mum's money to buy a house down at Byron Bay because she would have wanted that". Not that mum who was then in residential care was ever going near the new house at Byron Bay but it was just taken for granted that this was what mum would have wanted.

So the whole issue about substitute decision making of course is predicated on the view that you have an idea of what the person would have wanted to happen but of course the creation of what the person would have wanted to happen gets very muddied by one's own wishes in the matter and it's a big problem with substitute decision making legislation. And I think especially from the socialist perspective, what I've always been staggered about is that social workers don't talk about assisted decision making but it's what they do all the time. But they don't think about the mechanisms of how do they help someone think through what the issues might be if you make this decision as distinct from that decision. And we're very good at it in practice but we don't bring it to this context to empower older people to be involved as much as they could be.

Tilse

We also picked up in this how risky some of these practices were for the asset managers, that you know, a lot of people were reasonably above board saying, "Well I just pay it all with my bank card and then I retrieve all the money from mums and I just shift it around", but not keeping any records, so if anybody raised an alarm and they went to a tribunal, there's no evidence of you know, there's just this shifting of money around. So a lot of this we also wanted to alert families to and say, "These are really risky practices for you even if your intentions are good", and sometimes they weren't, you know, "Mum would like me to pay the school fees for my daughter, she'd like that".

So this came out as very poor accountability because it's seen as well families you know, and this arose not just from the family attitudes but from the attitudes of older people, you know, that when you talk to older people they say, 'Well I trust my daughter, I don't want to see receipts, it would be offensive to ask for receipts, I don't want records, I don't want to view this". Not all older people, but so they bought into it too, that you shouldn't - it's something that we work on and trust and of course that doesn’t work in all families.

The risk if we have attitudes of entitlement to assets by family members and certainly I mean it's in the financial abuse literature, there's lots of talk about taking your inheritance early, with people feeling, "Look it's going to be mine anyway so it doesn’t matter if we buy the house in Byron Bay now". We shouldn't use that example; we should change the location, Mornington peninsula. Ageist attitudes, you know, it's really the attitudes that older people don't need the money or don't own the money, can't use it frivolously if they want to, can't marry the woman they met in residential care. So underpinning you know, very risky attitudes, if people have got very ageist attitudes to older peoples entitlements and rights then it's an alarm bell for poor asset management.

Sometimes there was poor understanding or skills in prudent asset management and we've seen asset managers who had a mental health problem, asset managers who were a spouse who had early stage dementia, asset managers who had a gambling problem, lethal. Limited knowledge of EPAs, we can talk about that endlessly but we won't go there, and impairment in capacity of the older person. While you have an older person with capacity presumably they can speak up if they know what's going on and if they feel confident to speak up, and we'll talk a little bit around some of the issues to do with that.

And in aged care facilities that one of the issues was that facilities generally prioritise managing risk, that they would rather take all the money off the older person and keep it in the office than allow them to have access to it so there wouldn't be any allegations of staff financial abuse or money going missing. So it's a highly contentious area of practice in residential aged care. Jill.

Wilson

I think just following up on that, the other issues for aged carer facilities is that they are not willing to get involved in it, partly because they don't have the time and they don't have the staff resources, they don't have staff to take somebody down to the bank, they just don't have the staff. And often the older person doesn’t have enough money to pay the staff time that's involved in backfilling the person. So while the Commonwealth legislation is very clear in relation to maintaining people's autonomy to (indistinct) the resource base isn't there to do it. And the facility itself is not very good - it's not a good guardian for the older person if family members are coming in and helping themselves to things, they just default to the family, any time it's money they just default back to the family. It's understandable but it's very regrettable.

Tilse

The older person's views on asset management obviously they're central to this program of research and we were very interested in saying well what do you want to happen. And we interviewed older people who had - who were receiving some help because if you talk to older people in general they'll say, "Well I'll manage my money until I can", but it was sort of people that had some experience of it that we interviewed in-depth. What they reported was some you know, did have some disability that made it difficult for them to do some of the tasks of asset management, but they still made all the decisions and then they used their family asset manager to implement those decisions.

Others said, "Don’t' really make the decisions but I am consulted, so they say look we're going to do this, we're going to do this, what do you think, I am consulted, I'm not really making the decision but I am consulted". We've had some older people who just ceded management to others, "I'm just tired, I'm sick, I don't really want to do this, I don't want to worry about it", you know, "I'm very happy if people will manage it on my behalf as long as they'll reassure me there's enough I'll be all right, there's enough". And then there were some that said, "Well actually I went to hospital, my son or daughter took it over and I never got it back, somehow I can't retrieve control over my financial management, I'm well enough now to do it but it's really hard to get back once they've got their hands on it".

Wilson

I think the issue in here of course is that one of the dominant views older people have is that they want to maintain relationships with family members and that was the eminent thing. So it's the only way they thought they could maintain reasonable relationships was to keep it or have someone take it over, that's what they did. But it's not necessarily what they wished to happen but what they really fundamentally had to happen was keep the family together.

Tilse

And it's obviously where you look at undue influence in terms of being pushed into saying, "Well I don't want to do it". Well we did find people that said, "I really don't want to do it", you know. But what was important, it isn't a simple matter of saying well you really have to make sure that people contain decision making power, what was important in terms of older people's satisfaction was the fit, the fit between what they wanted and what was happening, you know. So if there was a good fit by saying, "Look I'd rather my daughter managed all of it and she is", then they were quite satisfied. They're still at risk because they weren't seeing anything happening, there was no accountability process, but it was this matter of fit between them so we thought you can't really homogenise older people's expectations and say well everybody wants to be taken control or everybody wants to cede management.

And again, homogenising older people you know, I mean some of the older people that we talked to were ex-bank managers and people presume they can no longer manage their assets because they're old. There were some real issues there. There's a lot of assumptions about women, that they won't have asset management because of men in their generation - we found a lot of women that had run the household finances, were actually really the financial manager in the family and they had lots of financial skills so it wasn't the gender expectations that some would suggest.

Wilson

No, and some older people were much better at it than their children.

Tilse

Absolutely. Financial abuse, the key elements. I talked about it with Jill frowning at me, access to asset - the key you know predictors for people with impaired capacity. Access to assets, and we do that very easily through our banking practices, through our use of ATMs, through older people collaborating saying, "I'll give you my pin number and my card", and through Enduring Power of Attorney where we actually give people fairly unfettered access with not much accountability requirements.

Presence of adult children, attitudes held, we talked about that. The absence or presence of a capable guardian, someone who monitors. Financial abuse can be invisible, it often comes to light when older people are admitted to hospital and the social workers suddenly realise there's some people coming in and trying to get people to change Enduring Powers of Attorney or change wills or all sorts of things are happening. A lot of that in the privacy of the family home is not seen and certainly when we talked to social working community nurse practitioners, one of their responses, if they got a sense that there was some sort of financial - you know, not enough money around and not - and maybe one of the grandchildren or adult children have moved in, not paying board, all of that stuff.

One of their responses was often to try and put in some sort of monitoring so that they would get community nurses to visit weekly or just somebody else coming into the home. High risk care in terms of if they say we're concerned about financial abuse they might shut down any service providers' access to the older person, so it's a really very fraught area of practice of how do you intervene.

Wilson

And there's a big difference - well we found a big difference in the way that social workers in hospitals intervene versus people in the community say. Social workers in hospitals tend to be much more gung ho, and take action because they think I've got the person safe in the hospital, but of course the down side of that is that they're not really considering perhaps what the older person wants, they're motivated by a desire to solve the problem. The social workers and community nurse in the community of course as Cheryl said it's a much more nuance sort of response, it really is about how to balance up what the person wants and what we can do. And I mean a lot of older people we found are quite prepared to put up with - they know they're being ripped off and they're quite prepared to put up with it as long as it doesn’t get past a certain point.

Tilse

We have five minutes so I'm moving us on. I think we've talked a bit about this and it maybe familiar to many of you in the audience, limited understanding of what the principles are of substitute decision making legislation, it is about less restrictive alternatives, it is about helping people make decisions and providing the resources they need to make decisions, not to decide for them. Or if you are deciding for them, doing it in line with your understanding of their best interests and wishes. We found particularly in residential aged care but also a lot of families, a default, "I've got the Power of Attorney, I can make the decisions, it's my decision" not a substituted decision.

For those who really want to do assisted decision making in residential care and families, it takes a lot of work and it's very slow and there's no resources around it, no recognition of what this takes for family members, for service providers, the residential care workers. Do you want to talk very quickly?

Wilson

Just quickly about this group. I think one of the surprising things that we found here was - well (a) the huge differences in the indigenous population in Queensland. So the Torres Strait Islanders on the whole were incredibly private and they really didn't want any family member to have an EPA. They didn't want any of the family members to know what money they did have so that it was quite different from the other groups. So that the researcher, Melita, who was doing the research, she got endless requests to be an Enduring Power of Attorney for all the people she interviewed which she had to …

Tilse

…tactfully decline.

Wilson

But it was a different sort of story for the Murris, especially the Murris on - both the Murris on the far north peninsula and the Murris of Brisbane who were much more - the difference there was related to their level of education, it didn't reflect the cultural thing. Whereas the Torres Strait Islanders' level of education they have - some of these were professional people, they still wouldn't have anything and they still wouldn't have involved the family.

Tilse

Explain Murris. They're called Kooris in New South Wales. Explain Murris.

Wilson

Well Murri is the broad term that indigenous Aboriginal Queenslanders call themselves as a group but there are of course different clans and groups within that, so it's Koori, Murri, different States have different terms, but the Torres Strait Islander people are definitely not Murris.

Tilse

And I think one of the interesting things that people say well there's a whole lot of cultural reasons why people wouldn't want to use these sort of very western white fella kind of approaches, it’s not that simple. There was quite a lot of people very interested.

Wilson

They wanted- they thought it was a good idea but they couldn't see how culturally to implement it. They didn't have it, none of them had it.

Tilse

None of them had heard about it really. OK we'll talk very quickly about this intergenerational transfers through wills. Our national survey has suggested it's very normative in Australia, nearly 60 per cent, it's much more common to have a will in Australia than it is in the UK or the States in terms of when we look at comparative studies. Now there's a lot of differences between, if you interview people over 60, 90 per cent will have wills. So you have to look at the sampling in terms of who's in it, but this was of all adults over 18. It is linked to age and assets, the best predictors were how old you were and how much you had or what sort of assets you had.

Strong focus on transfers vertically within the family, that when you said, 'Well what are you going to do, who do you think should inherit, how do you want to do it", it was pretty much the kids going down, you know, or the grandchildren. Not too much recognition for the philanthropic organisations, not too much recognition of other organisations or agencies that might be important, not much recognition of other family members apart from spouses, spouses and kids.

The contest stuff has been very interesting for us, we did - well our lawyer colleagues did an analysis of cases over a one-year period across Australia where there was contests. Do you want to speak to that Jill?

Wilson

Yes, the contest framework for contesting, you've got two laws. You've got one law that allows you to write a will and then another law that says you are obliged to provide for family members. And of course these two collide with each other. So the testator has freedom, yes, the testator is obliged to provide, yes. So these get mixed up. In the context of that the testator - and testator has freedom in North America of course as you might imagine is a big issue and that's what they discuss all the time.

The Family Provisions Act really says you have to demonstrate need when we look to succeed, but when we looked at these cases these people didn't have need, they just had some blood relationship or even family association relationship, so it could have been someone's stepchild, no blood relationship at all. And they succeed. So what's happening is there's a lot of go away money being handed out to try and get things settled. But it does raise interesting issues for us to think about in terms of how do we transfer assets inter-generationally and what extent we are going to - we should rely on wills to do it.

Tilse

Certainly one of the things that shocked us is the underpinning attitudes of any member of the family is entitled to inherit, it isn't about need or the wishes of the testator.

Wilson

No, and it's in that context that we're looking at the people - how families manage when they've got a child with a cognitive disability because …

Tilse

… it's a particular need.

Wilson

Particularly, I mean wills are not a good way you'd think for them to provide but …

Tilse

…we're currently looking very quickly, we're currently looking at contested cases that don't go through the courts, the Public Trustee partners across Australia have done a file review on that and say well how do they get mediated within the Public Trustee organisation that keeps them out of court.

Wilson

And it's pretty much the same process.

Tilse

Yes, complex family structures of course are one of the key issues. So to finish and to open this for discussion, I guess we wanted to say this is a broad area of research, it's raised a whole heap of questions for policy and practice for us but the key questions that we think we still have to talk about are whose money is it in terms of older people, who should be consulted around decisions, what does good practice look like, how do we get assisted decision making, more on the agenda of what people do and not default to substitute, what's the appropriate balance between risk and personal freedom, and how do we minimise harm and maximise the capacity to families to assist. But one of the issues that we've discovered in Hong Kong in trying to minimise harm in Enduring Powers of Attorney, they made it so difficult to take out nobody did it and they all just opened joint bank accounts which is much more risky.

Wilson

Many joint bank accounts. If I have four children I have a joint account with you and you and you and you and I keep the passbooks under my pillow.

Tilse

And they don’t' write a will because you can all manage it through the joint accounts. So things we've learned. So I guess we'd like to stop here, we've got some summary questions of where we've come to with these sorts of things but we'd like to open it for discussion.

Thank you.

[Applause]

END OF TRANSCRIPT


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