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About this episode
Have you ever thought about who might be the biggest threat to the elderly in our lives? It’s not just the faceless strangers in nursing homes; it’s often their own family members.
In this eye-opening episode of Don't Be Caught Dead, I chat with William J. Betts, a legal expert in family violence and elder rights at Peninsula Community Legal Centre. Will sheds light on the often-overlooked issue of elder abuse. We dive deep into the complexities of estate planning, the importance of having a Will, and how to protect our loved ones from potential harm.
Will shares his wealth of knowledge on the legal landscape surrounding elder abuse, revealing that adult children are frequently the perpetrators. We discuss the critical role of community engagement in preventing abuse and the importance of open conversations about death and dying. With practical advice on estate planning, including the significance of having a Power of Attorney and an Advance Care Directive, this episode is a must-listen for anyone looking to safeguard their loved ones and ensure their wishes are respected.
Join us as we explore the nuances of elder rights, the legal protections available, and how to navigate the often murky waters of family dynamics when it comes to estate planning. This conversation is not just about legalities; it’s about compassion, understanding, and the importance of community in protecting our elders.
If you enjoyed this episode, please let us know! Share your thoughts, subscribe, and help us spread the word about the importance of discussing death openly.
Remember; You may not be ready to die, but at least you can be prepared.
Take care,
Catherine
Show notes
Guest Bio

Deputy Director and Practice Manager for Civil & Crime at the Peninsula Community Legal Centre
William J. Betts serves as the Deputy Director and Practice Manager for Civil & Crime at the Peninsula Community Legal Centre (PCLC) in Melbourne, Victoria. In this capacity, he oversees the delivery of civil and criminal legal services, ensuring that clients receive comprehensive and effective legal assistance.
With a robust background in family violence law, Will has previously held the position of Senior Lawyer – Family Violence at PCLC. His expertise in this area has been instrumental in advocating for and protecting the rights of vulnerable individuals affected by family violence.
Beyond his managerial and legal roles, Will is actively engaged in community education initiatives. He has participated in discussions highlighting the importance of wills and the role of community legal centres in assisting individuals with estate planning. His contributions aim to raise awareness about legal rights and empower community members through accessible legal education.
Will's dedication to social justice and his comprehensive experience in civil, criminal, and family violence law underscore his commitment to serving the community and advocating for equitable legal outcomes.
Summary
Key points from our discussion:
- Elder abuse is often perpetrated by family members, particularly adult children.
- Engaging with the community can help identify and prevent elder abuse.
- The importance of having a will and understanding the probate process.
- The role of power of attorney and advanced care directives in ensuring wishes are respected.
- Strategies for mitigating family conflict through clear communication and planning.
Transcript
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It used to be that when you'd
mentioned elder abuse, people would
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00:00:05,400 --> 00:00:11,910
think mainly around nursing homes,
aged care hospitals, you know, the
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00:00:11,910 --> 00:00:15,150
kind of nurse ratchet style of abuse.
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00:00:15,420 --> 00:00:21,810
But the reality is it's actually family
members, generally, adult children of
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00:00:21,900 --> 00:00:24,660
older people who are the biggest risk to.
1
00:00:01,920 --> 00:00:05,400
It used to be that when you'd
mentioned elder abuse, people would
2
00:00:05,400 --> 00:00:11,910
think mainly around nursing homes,
aged care hospitals, you know, the
3
00:00:11,910 --> 00:00:15,150
kind of nurse ratchet style of abuse.
4
00:00:15,420 --> 00:00:21,810
But the reality is it's actually family
members, generally, adult children of
5
00:00:21,900 --> 00:00:24,660
older people who are the biggest risk to.
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00:00:25,075 --> 00:00:29,064
Being perpetrators of abuse against
their parent or an older person.
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Welcome to Don't Be Caught Dead, a
podcast encouraging open conversations
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about dying and the death of a loved one.
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I'm your host, Catherine Ashton.
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Founder of Critical Info, and I'm helping
to bring your stories of death back to
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life because while you may not be ready
to die, at least you can be prepared.
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Don't be caught dead.
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Acknowledges the lands of the
Kulin nations and recognizes their
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connection to land, sea, and community.
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We pay our respects to their elders
past, present, and emerging, and
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extend that respect to all Aboriginal
and Torres Strait Islander and First
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Nation peoples around the globe.
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This morning we, as speaking with
William J. Betts, he serves as the deputy
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Director and practice manager for civil
and crime at the Peninsula Community
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Legal Center in Melbourne, Victoria.
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In this capacity, he oversees.
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Delivery of civil and criminal
legal services, ensuring that
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clients receive comprehensive
and effective legal assistance.
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With a robust background in family
violence law, will has previously
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held this position of senior
lawyer family violence at PCLC.
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His expertise in this area has been
instrumental in advocating for and
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protecting the rights of vulnerable
individuals affected by family violence.
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But beyond his managerial and legal
roles, will is actively engaged in
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community education initiatives.
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He has participated in discussions
highlighting the importance of
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wills and the role of community
legal centers in assisting
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individuals with estate planning.
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His contributions aim to raise
awareness about legal rights and
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empower community members through
accessible legal education.
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Will's dedication to social justice
and his comprehensive experience in
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civil, criminal, and family violence
law underscores his commitment to
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serving the community and advocating
for equitable legal outcomes.
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Wow.
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That is amazing.
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Not everyone.
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That's quite the
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introduction.
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Yeah, that was,
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thank you so much for being this.
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Will I appreciate.
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No, I absolutely.
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I'm glad to be here.
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Thank you for having me.
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It sounds like you have quite the social
conscience when it's come to your career.
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Well, sometimes we just fall into these
things, but I like to think that I, part
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of my motivation is to contribute to
my community through my legal practice.
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So it's very rewarding.
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It's very rewarding to do this work.
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And tell me, how did you
end up in this field?
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Well, I first started as a criminal
lawyer, seems like a lifetime ago,
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basically, because it was the only
job that I could get at the time.
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This was shortly after 2008, so after
the kind of financial crisis and
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jobs were pretty hard to come by.
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I actually studied, when I did my study,
I did intellectual property, background
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in the arts, arts prior to that.
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And so I just kind of, it was the
first job that I could get and
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I kind of fell in love with it.
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And mainly the advocacy.
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So the court work and progress
from that position through a
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number of different private legal
practices, and then eventually came
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to PCLC through that as kind of a.
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One of their duty lawyers at
the Frankston Magistrates Court
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in the family violence list.
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So it was at the beginning of the
specialist Family violence court.
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And so since then I've been working
at PCLC and kind worked my way up.
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I've originally only just
finished my eighth year,
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coming my eighth year at PCLC.
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So it's been quite the journey.
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But yeah, I didn't, I didn't start
with the notion that I would go
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into a community legal practice, but
it's the most rewarding place I've
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ever worked in my, my legal career.
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And tell me, you, you mentioned just
previously about the, the changes
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when there was an introduction
with the family violence court.
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Is that, what was that?
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Can you explain that?
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Okay.
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So some time ago the Victorian
government, I think it was then
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the Brax government introduced the
specialist family violence court.
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So prior to that time, I. The family
violence matters, that's intervention
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orders in relation to family violence and
dealing specifically with family violence.
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Didn't have a specialized jurisdiction.
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It was just run of through the rest
of the usual lists and dealt with
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in amongst all the other matters
being criminal or civil matters.
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Yeah.
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Right.
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Now you can probably imagine that
obviously that led to a lot of difficulty
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and even a certain amount of risk based
by, especially survivors of family
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violence, having to attend court and often
sit opposite and next to the, the people
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that are alleged to being exposing 'em
to that family loss and those behaviors.
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So obviously after a significant
period of community engagement
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from led by survivors, the
government took up those, uh.
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Legislative changes, it's the
Family Violence Protection Act.
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And along with it, a number of changes
in relation to how the court function.
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And part of that was the creation of
specialist family violence courts that
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first started as specialized lists and
duty lawyers, specially trained duty
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lawyers to assist both respondents and
so people, perpetrators and survivors
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would have their lawyers to assist them.
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And there'd be specialized programs set up
to assist people engaging in that process.
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And also along with that
training for magistrates.
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And now we are in a situation where
there are a number of specialized
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courts that have been designed as
in architecturally designed to.
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Create a more safe environment and
low risk environment in relation
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to dealing with these matters,
because obviously court and was
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seen as a focus of risk for people.
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And so part of the jurisdiction
is about minimizing risk to the
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community facing family violence.
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So we didn't want the court
to contribute to that risk.
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So I was kind of came on board.
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My timeline might be a little bit off,
but a few years after those changes
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were kind of implemented and prior
to the current system that we have.
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So I've kind of saw the development
of the specialist family violence
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court and it and the jurisdiction.
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It's relatively infancy and
seen how it's kind of evolved.
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Over that time,
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it's amazing to think that we've
come from, in that period of time,
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I'll say short period of time will,
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oh, relatively, yeah.
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No, yeah.
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War moves really slowly.
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So this has all happened
relatively quickly.
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Yeah, yeah.
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So it's in recent memory, if you're
thinking, you know, Steve b Brax and
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his term as premier of Victoria, so
I still wasn't at school that stage,
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unwell and truly left by that stage.
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So it's within, I'm
gonna say recent memory.
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And so it's interesting that we've
seen, you know, that progression in
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the law, recognizing the vulnerability
to the point that it's even actually
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designed buildings, which I think
is just so necessary and, and an
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amazing, you know, leap forward in, you
know, as you said, an industry that.
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Generally is slow to move.
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Mm-hmm.
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Um, and the reason why I'd, I'd really
wanted to have a chat with you today
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is that you work a lot in the space of
estate planning and also around that
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whole elder rights, elder protection,
elder abuse element that you can see.
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Can you sort of set the scene
for us about what you've seen in
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your career about how that is?
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That is because for me personally, it may
be just because I've just started working
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in this space, but I do feel like that
there's more conversations now in the last
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three sort of, well, certainly since I
think the Royal Commission into Aged Care
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has been released, that there is a more
community awareness around elder abuse.
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Would I be fair to say that?
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Well, I think it ebbs and flows.
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Yeah.
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Okay.
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Uh, I, when I first started, there were
a lot of misconceptions about elder
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abuse that were out in the community
that I think have receded quite a bit.
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It used to be that when you mentioned
elder abuse, people would think
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mainly around nursing homes, aged
care hospitals, you know, the kind of,
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00:09:01,064 --> 00:09:05,564
this might be shown my age, but the
kind of nurse ratchet style of abuse
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occurring in the care of someone by
a, a nurse or aged care professional.
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00:09:12,435 --> 00:09:17,234
But the reality in terms of the
figures and what we saw and what
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the kind of statistics bear out is,
it's actually family members and
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generally adult children of older
people who are the biggest risk to
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being perpetrators of abuse against
their parent or an older person.
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00:09:32,775 --> 00:09:34,484
And so essentially what.
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Has happened over a period of my
work has been a recognition that it
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does fall within what the courts and
the law defines as family violence,
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that being a trusted family member,
engaging in abuse of conduct or coercive
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control in relation to a relative.
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So there was a long kind of push to
make to kind of recognize that as a
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form of family violence and therefore
being appropriate to be dealt with
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within the family violence jurisdiction.
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00:10:05,460 --> 00:10:10,020
And that's where I first became
involved in elder abuse as an issue.
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00:10:10,725 --> 00:10:15,765
As part of that process, we set up a,
what originally was supposed to be just an
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elder abuse clinic down in our SBU office
to kind of provide that specialized advice
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and begin engaging with older people.
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00:10:26,025 --> 00:10:30,765
Now, this might be pulling back the
curtains a little bit, but one of the
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reasons why I became engaged in this, the
area of estate planning, was beginning
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with it as a bit of a Trojan horse in
order to discuss with older people the
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issues of elder abuse and to raise the
awareness about concerns about those
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issues using estate planning as a
lens in which to kind of bring people
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in to start discussing those issues.
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Because we found that if we set up a
education session about elder abuse or
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coercive control or something like that,
or family violence, many people would
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not wanna engage directly with that.
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Those programs and so we kind of set
them up as wills and estates and kind of
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estate planning and we discuss the kind
of estate planning but bring in those
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elements of, but whilst you're doing your
estate planning, it is really important
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to think about risk and managing your
family and being aware of people trying
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to pressure you or control you into
making certain decisions in relation
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to your estate and the different kind
of warning signs that might arise in
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relation to keeping an eye to that.
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And so essentially that's kind of what
brought me into this, this space as
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I came into the space of assisting
older people with their estates.
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And that's why very much my perspective
is very different from a lot of my
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colleagues in that I come at the
question of estate planning from a risk
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mitigation and almost a family violence.
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00:12:00,525 --> 00:12:06,314
A rubric then rather than purely
just the kind of often commercial
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00:12:06,584 --> 00:12:10,334
and angle that a lot of other
solicitors may, may come at it from.
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I'd like to think that it's becoming more
common for solicitors to turn their mind
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to those questions when engaging with
people in relation to estate planning
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00:12:20,535 --> 00:12:25,635
and will drafting, but as I said, will
move slowly and that's a slow process.
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00:12:25,665 --> 00:12:30,285
But as I said, so that's the kind of
background of how I kind of came into this
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Yeah.
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This space and why my perspective
is a little different than
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some of my colleagues.
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00:12:36,435 --> 00:12:39,285
Well, I, I love your perspective,
will, and I have so many
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questions about this now.
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00:12:40,635 --> 00:12:40,725
Sure.
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00:12:41,355 --> 00:12:47,115
So tell me, you, you talk about risk
mitigation, so what sort of things
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do people need to be aware of?
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What should they be?
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The alarm bells?
209
00:12:51,165 --> 00:12:55,245
So I'd say there's two categories
in relation to this question,
210
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and this often comes up when
assisting and doing presentations.
211
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I often say to people when they attend
my presentations that it's actually
212
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the people who are engaged with their
community, who are willing to come out
213
00:13:09,000 --> 00:13:12,720
and are coming out to a function or
engage with a community group who have
214
00:13:12,720 --> 00:13:14,520
invited me to attend, to speak to them.
215
00:13:14,790 --> 00:13:17,700
They're actually at a lower
risk in a lot of circumstances.
216
00:13:17,700 --> 00:13:22,110
'cause one of the ways to really prevent
risk is to be engaged with the community
217
00:13:22,350 --> 00:13:24,120
and be engaged with other people.
218
00:13:24,330 --> 00:13:26,550
Be talking to them about what's going on.
219
00:13:26,940 --> 00:13:29,370
Be talking to them about your plans.
220
00:13:29,760 --> 00:13:34,080
The more people that know what you want
to happen in relation to your estate,
221
00:13:34,230 --> 00:13:39,750
means that there's more people to kind
of recognize if something's going wrong
222
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or if there's been a sudden change.
223
00:13:42,120 --> 00:13:44,730
'cause that's one of the
big kind of warning signs.
224
00:13:44,940 --> 00:13:49,770
The classic is if multiple wills are being
made within very short periods of time.
225
00:13:49,845 --> 00:13:51,555
Yeah, then that's a big red flag.
226
00:13:51,915 --> 00:13:56,595
If it seems like every 12 months or even
shorter, a new will's being drafted.
227
00:13:56,925 --> 00:14:00,195
That often means that there are
multiple parties pressuring someone
228
00:14:00,195 --> 00:14:04,125
to change their will, and so it's
just a game of who trying to get
229
00:14:04,125 --> 00:14:05,895
in to get that last will done.
230
00:14:06,135 --> 00:14:06,285
Yeah.
231
00:14:06,285 --> 00:14:06,375
Right.
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But people who are not isolated, who are
in community are in a much better place
233
00:14:12,375 --> 00:14:16,575
to be able to say, I'm experiencing this
pressure and have support come around
234
00:14:16,575 --> 00:14:18,555
to try and protect them from that.
235
00:14:18,855 --> 00:14:22,785
What often happens when I do these kind
of presentations and talk to the community
236
00:14:22,785 --> 00:14:28,395
is that it will be the people that attend
those kind of engaged in community may
237
00:14:28,395 --> 00:14:33,465
have someone who is more isolated, a
neighbor, a friend, someone else who's
238
00:14:33,465 --> 00:14:38,295
in their retirement village, who perhaps
isn't as engaged, who then they can
239
00:14:38,295 --> 00:14:41,265
recognize the signs, and often it is.
240
00:14:41,865 --> 00:14:46,064
Part of the first thing to notice
is if they are very isolated,
241
00:14:46,425 --> 00:14:47,594
it's not always the case.
242
00:14:47,625 --> 00:14:52,665
Some people just like they're quiet and
like be, not to kind of be as social,
243
00:14:53,235 --> 00:14:59,235
but often it is a sign of someone who
is essentially being isolated rather
244
00:14:59,235 --> 00:15:01,574
than doing it upon their own volition.
245
00:15:02,160 --> 00:15:02,449
Yeah.
246
00:15:03,370 --> 00:15:09,015
Secondly is if someone is seemingly
isolated, but there is one person that
247
00:15:09,015 --> 00:15:13,995
is constantly there or is attending
and there's the kind of, there's
248
00:15:13,995 --> 00:15:18,045
issue of obviously yelling, bruises.
249
00:15:18,135 --> 00:15:22,694
There's all those kind of classic
things that people should take note of,
250
00:15:22,814 --> 00:15:25,574
especially when it comes to neighbors
or people they're in community with.
251
00:15:26,055 --> 00:15:26,265
Yeah.
252
00:15:26,295 --> 00:15:29,234
Some of those things are, are
kind of general family violence,
253
00:15:29,234 --> 00:15:30,795
things that should be of concern.
254
00:15:30,885 --> 00:15:34,005
As I said, isolation, canceling of events.
255
00:15:34,574 --> 00:15:37,785
You know, if I have a, someone
who I live with in a retirement
256
00:15:37,785 --> 00:15:39,405
village and we catch up.
257
00:15:40,064 --> 00:15:41,295
I like to reach out to people.
258
00:15:41,295 --> 00:15:45,525
I, you know, I invite 'em for coffee every
week just to kind of touch base, which
259
00:15:45,525 --> 00:15:48,405
is something I would encourage people to
do if they're concerned about, someone
260
00:15:48,405 --> 00:15:52,094
needs to kind of go, let's go out, let's
go get a cup of tea, bring them out of
261
00:15:52,094 --> 00:15:53,984
their home, or even a visit their home.
262
00:15:53,984 --> 00:15:56,775
And that's always a good one as
well, is if you're able to visit the
263
00:15:56,775 --> 00:16:00,584
home, have a look around if you're
seeing, you know, damaged property
264
00:16:00,584 --> 00:16:03,555
and things like that, that might be
a sign that something is happening.
265
00:16:04,035 --> 00:16:06,285
And this goes for a whole,
whole range of issues.
266
00:16:06,344 --> 00:16:08,535
I mean, it's not just in terms
of family violence, in terms of
267
00:16:08,535 --> 00:16:10,275
health, mental health in general.
268
00:16:10,275 --> 00:16:12,795
So this is, yeah, what
things do just broadly,
269
00:16:13,094 --> 00:16:17,390
and we know now from statistics
that loneliness is, is a absolutely
270
00:16:17,505 --> 00:16:21,435
significant contributor to both mental
health and also physical health.
271
00:16:21,435 --> 00:16:22,185
Uh, yes.
272
00:16:22,244 --> 00:16:22,454
Yeah.
273
00:16:22,574 --> 00:16:22,964
Yeah.
274
00:16:23,025 --> 00:16:27,645
And this is why, you know, again,
going on a bit of a tangent, why I
275
00:16:27,974 --> 00:16:32,234
kind of, in terms of the Aged Care
Village system, it has its issues.
276
00:16:32,474 --> 00:16:36,525
I deal with it quite a bit, but that, as
I said, the kind of that village model.
277
00:16:36,855 --> 00:16:40,965
Is I think quite a good one because
it kind of creates that community.
278
00:16:41,235 --> 00:16:44,745
And I've found that the community
that can be created around a village
279
00:16:44,835 --> 00:16:47,085
is one of its major benefits.
280
00:16:47,415 --> 00:16:51,585
But as I said, so those kind of things
of if you engage with someone and let's
281
00:16:51,585 --> 00:16:56,625
say they start canceling or they, you
attended their address and you see
282
00:16:56,985 --> 00:16:58,695
that they're, they're not doing great.
283
00:16:59,235 --> 00:17:02,265
Now that doesn't necessarily mean
that there's elder abuse going on,
284
00:17:02,265 --> 00:17:03,765
but obviously those overcome things.
285
00:17:05,150 --> 00:17:09,285
The idea being that hopefully if you
engage with someone, they will open
286
00:17:09,285 --> 00:17:12,105
up and tell you what's been going on.
287
00:17:12,555 --> 00:17:19,454
And so one of the things that I think is
unfortunate is that prior to, I've seen
288
00:17:19,454 --> 00:17:23,685
this kind of evolution, as I said about
in this engagement, it was originally
289
00:17:23,685 --> 00:17:28,635
thought that the kind of concern in
relation to elders was often financial.
290
00:17:29,115 --> 00:17:32,355
And there are often financial elements,
and that's where the kind of will
291
00:17:32,355 --> 00:17:34,245
and estate planning comes into it.
292
00:17:34,620 --> 00:17:38,310
But in a lot of sense, the, the
most commonly and the kind of base
293
00:17:38,310 --> 00:17:43,740
level of which often the other parts
are built upon in relation to elder
294
00:17:43,740 --> 00:17:47,220
abuse is psychological and emotional.
295
00:17:48,060 --> 00:17:48,120
Yeah.
296
00:17:48,120 --> 00:17:51,510
That's kind of the cornerstone upon
which all these other things develop.
297
00:17:51,510 --> 00:17:55,980
So you can often tell when someone is
talking about their relationship with
298
00:17:55,980 --> 00:18:02,175
their children, with other relatives,
they'll often say things like, oh, they,
299
00:18:02,430 --> 00:18:08,910
they yell at me when I mention X, Y, and
Z. Or you know, they tell me that things
300
00:18:08,910 --> 00:18:12,810
like, oh, well, you know, if I'm not
gonna do X, Y, and Z, then they're not
301
00:18:12,810 --> 00:18:14,940
gonna bring their grandkids over to visit.
302
00:18:15,540 --> 00:18:20,100
Now that's not of the same level
of someone saying, I'm gonna hurt
303
00:18:20,100 --> 00:18:24,570
you if you don't write my, give
me the house and the will, but.
304
00:18:25,020 --> 00:18:32,250
It's still upon that spectrum of
behaviors, which the courts consider to be
305
00:18:32,250 --> 00:18:34,530
elder abuse in a form of family violence.
306
00:18:34,770 --> 00:18:38,280
I just, even me, I personally,
when you, when you said, you know,
307
00:18:38,640 --> 00:18:42,810
I'll threaten to, to not bring the
grandkids, I'm like, wow, that's,
308
00:18:42,810 --> 00:18:44,730
that's, that's a terrible thing to say.
309
00:18:44,730 --> 00:18:44,880
It's a
310
00:18:44,880 --> 00:18:48,900
very, it's a very, that's a, that's
a quite a, a common, common thing.
311
00:18:49,350 --> 00:18:51,150
Now, it often won't be
as explicit as that.
312
00:18:51,390 --> 00:18:51,810
That's the thing.
313
00:18:51,810 --> 00:18:55,080
It won't be as explicit that people's,
especially with relationships with their
314
00:18:55,080 --> 00:19:00,000
parents, these are very, not to sound
like the doctor from Vienna, but these are
315
00:19:00,000 --> 00:19:05,100
very complex and intricate relationships
with a lot of psychological ballot
316
00:19:05,130 --> 00:19:07,620
baggage and that comes along with them.
317
00:19:08,130 --> 00:19:11,850
But as I said, it often we'll be as
explicit of that, but often it won't
318
00:19:11,850 --> 00:19:13,800
be as explicit as that It will be.
319
00:19:14,070 --> 00:19:19,500
Well, if, you know, I'm, I'm
too busy to, to, if you won't
320
00:19:19,500 --> 00:19:21,615
help me with X, Y, and Z, then.
321
00:19:22,439 --> 00:19:30,149
Well, listen, it's gonna be too difficult
for me to come and visit for Easter or to
322
00:19:30,209 --> 00:19:32,550
set up Christmas or something like that.
323
00:19:32,550 --> 00:19:38,310
So, as I said, the kind of pulling
away access to the kind of community
324
00:19:38,310 --> 00:19:42,570
and family that it's the kind
of core of their communities,
325
00:19:42,570 --> 00:19:44,100
those kind of family connections.
326
00:19:44,399 --> 00:19:49,199
And so, as I said, that's on a
spectrum of behaviors, right?
327
00:19:49,290 --> 00:19:53,909
You know, often that very kind of,
that psychological and emotional
328
00:19:54,209 --> 00:19:58,409
abusive behavior and controlling
behavior is on a spectrum that at
329
00:19:58,409 --> 00:20:01,770
the very end you have the kind of
extreme forms of violence and threats.
330
00:20:01,889 --> 00:20:05,550
And often there's, as I said,
it's not explicit, it's implied in
331
00:20:05,550 --> 00:20:11,610
relation to, well, if you want me
to be engaged in your life, then
332
00:20:11,610 --> 00:20:13,439
you are gonna have to support me.
333
00:20:13,679 --> 00:20:18,840
And that kind of saying that my
engagement with you has a cost, a monetary
334
00:20:18,840 --> 00:20:21,465
cost is often what we see, you know?
335
00:20:22,185 --> 00:20:28,905
If you really cared about me and your
grandkids, you would give us the money.
336
00:20:29,115 --> 00:20:29,265
Yeah.
337
00:20:29,865 --> 00:20:29,955
Right.
338
00:20:29,955 --> 00:20:32,805
That kind of thing is,
is often what happens or
339
00:20:33,015 --> 00:20:33,285
you
340
00:20:33,285 --> 00:20:36,345
would give us extra in the the will.
341
00:20:36,495 --> 00:20:39,345
So as I said, this is what we see.
342
00:20:39,465 --> 00:20:44,985
That's the thing to, that I, I'd ask
people to be most kind of clued into
343
00:20:45,075 --> 00:20:52,185
in relation to the risks, is it's often
those things that form the foundation
344
00:20:52,515 --> 00:20:59,145
that will then be used or lead to the more
significant financial issues and financial
345
00:20:59,145 --> 00:21:03,735
abuse that can have the long lasting
impact on the quality of life of this,
346
00:21:03,825 --> 00:21:06,105
beyond just the, the kind of impact of.
347
00:21:06,554 --> 00:21:09,915
Living in a circumstance where you have
those kind of relationships with your
348
00:21:09,915 --> 00:21:14,145
cousin family, especially with someone
who's older and may not have the capacity
349
00:21:14,145 --> 00:21:15,915
to kind of mend those relationships.
350
00:21:15,915 --> 00:21:19,965
So I often tell people, if someone is
telling you about their relationship
351
00:21:19,965 --> 00:21:24,975
with their children and they're
saying things that sound like they're
352
00:21:24,975 --> 00:21:32,895
being coerced or there's controlling
behaviors or blackmailing or emotional
353
00:21:32,895 --> 00:21:37,754
blackmail, things like that, those are
the things that I would say, well, you
354
00:21:37,754 --> 00:21:39,915
know, it's worth exploring those more.
355
00:21:40,365 --> 00:21:45,284
Some people exaggerate, some people,
you know, we kind of maybe talk a
356
00:21:45,675 --> 00:21:49,725
bit more dramatically about sometimes
about our relationships, but often
357
00:21:49,725 --> 00:21:51,705
that hides a, the truth of the matter.
358
00:21:52,395 --> 00:21:56,895
You know, the, the classic, well, my
son never calls that kind of thing.
359
00:21:56,895 --> 00:22:01,875
You know, see movies, it's a bit of
a punchline, but sometimes that can
360
00:22:01,905 --> 00:22:04,544
hide a real, a coercive relationship.
361
00:22:05,295 --> 00:22:09,825
Affection is provided on
the basis of receiving,
362
00:22:10,425 --> 00:22:10,545
um,
363
00:22:11,055 --> 00:22:12,135
certain things in return.
364
00:22:12,675 --> 00:22:17,145
And just on that point, will, um,
so you mentioned previously that
365
00:22:17,475 --> 00:22:20,955
you yourself actually take people
out for a coffee and have a chat
366
00:22:21,375 --> 00:22:22,755
catch up and see where they're at.
367
00:22:23,025 --> 00:22:26,385
So if someone is in a community,
and it doesn't matter whether it
368
00:22:26,385 --> 00:22:30,045
be a village such as a retirement
village, but let's, let's talk more
369
00:22:30,045 --> 00:22:31,815
broadly in relation to community.
370
00:22:31,845 --> 00:22:35,985
'cause we know that statistically
there's only, you know, a very
371
00:22:35,985 --> 00:22:40,335
small number of people who actually
have created their wills and given
372
00:22:40,335 --> 00:22:41,955
consideration to estate planning.
373
00:22:42,255 --> 00:22:45,585
So this is, uh, something that can
certainly be discussed on a much
374
00:22:45,585 --> 00:22:49,185
broader scale because they're not
all going through the will process.
375
00:22:49,185 --> 00:22:53,775
So if we do notice these behaviors,
what is the sort of things
376
00:22:53,775 --> 00:22:55,245
that you sort of talk about?
377
00:22:55,245 --> 00:22:57,975
What sort of conversation
starters do you suggest to people?
378
00:22:58,245 --> 00:23:01,755
Well, as I said, asking those
questions about their family, when
379
00:23:01,755 --> 00:23:03,345
did you last hear from X, Y, and z?
380
00:23:04,110 --> 00:23:08,130
And if someone that you don't know very
well ask them about their family, what is
381
00:23:08,130 --> 00:23:10,320
their relationship like with their kids?
382
00:23:10,710 --> 00:23:12,630
It becomes almost, quite obvious.
383
00:23:12,690 --> 00:23:16,290
Often, you know, when you sit down
with someone and you start asking those
384
00:23:16,290 --> 00:23:22,020
questions, you know, there's always,
if their eyes light up, when they start
385
00:23:22,020 --> 00:23:24,900
talking about their kids and their
grandkids and they want to tell you about
386
00:23:24,900 --> 00:23:29,160
what they're doing and how proud they're
and happy they're about them, generally
387
00:23:29,160 --> 00:23:34,140
that's a pretty good sign that, listen,
there's not much going on here except
388
00:23:34,230 --> 00:23:35,880
perhaps this person's just a bit lonely.
389
00:23:35,880 --> 00:23:40,950
Or they might be just going through
a tough time, but if it upsets them
390
00:23:41,010 --> 00:23:46,440
to talk about their family and their
closest relatives causes them distress.
391
00:23:46,800 --> 00:23:50,460
Or they're automatically just
start trying to change the subject,
392
00:23:50,580 --> 00:23:54,270
that's a sign that there might
be something worth probing more.
393
00:23:54,270 --> 00:23:58,920
Now, I'm in a, a different position,
so often when I talk to people
394
00:23:58,920 --> 00:24:02,610
that it's in the context of a,
I mean, within my own community.
395
00:24:02,880 --> 00:24:07,230
I'm not in community with that many
older people, but in terms of, you
396
00:24:07,230 --> 00:24:08,700
know, family, friends, and the like.
397
00:24:09,270 --> 00:24:13,410
But in terms of my professional work, in
terms of the people that I engage with
398
00:24:13,830 --> 00:24:20,790
professionally, people kind of expect for
me to probe and expect me to ask difficult
399
00:24:20,790 --> 00:24:25,860
questions because I need that information
if I'm gonna advise them accurately
400
00:24:25,980 --> 00:24:27,840
and to give them the best advice.
401
00:24:28,365 --> 00:24:30,285
So it's quite different
if you are a friend.
402
00:24:30,285 --> 00:24:33,705
You often don't want to push too
hard 'cause they'll often cause
403
00:24:33,705 --> 00:24:38,475
people to kind of withdraw and
sometimes it takes time and building
404
00:24:38,475 --> 00:24:40,365
a relationship for people to open up.
405
00:24:40,665 --> 00:24:43,845
But as I said, it's a bit
more of an art than a science.
406
00:24:44,025 --> 00:24:45,075
It really is.
407
00:24:45,135 --> 00:24:46,845
There's kind of body language cues.
408
00:24:46,845 --> 00:24:50,955
There's, um, the way people to
describe their relationships
409
00:24:51,315 --> 00:24:56,145
or lack of relationship or
refusal to broach certain topics
410
00:24:56,445 --> 00:24:56,805
Yeah.
411
00:24:56,835 --> 00:24:58,815
That people should keep an eye out for.
412
00:24:58,875 --> 00:25:02,715
And you might be like, well, you know,
it might be a process where you, you
413
00:25:02,715 --> 00:25:06,975
kind of, your neighbor in the village
doesn't seem to come to any of the kind of
414
00:25:06,975 --> 00:25:12,075
events or, you know, you barely even see
them come out and, you know, you wave at
415
00:25:12,075 --> 00:25:16,695
them and they kind of begrudgingly kind
of wave back but don't really engage.
416
00:25:17,025 --> 00:25:20,295
You know, you think, well it might be
worth just knocking on the door and
417
00:25:20,295 --> 00:25:21,735
seeing if they want to have a coffee.
418
00:25:22,035 --> 00:25:25,845
Or when you see them next, you kind of
say hello and go over and have a chat.
419
00:25:26,265 --> 00:25:27,405
Invite them for a coffee.
420
00:25:28,034 --> 00:25:31,695
And then, as I said, as you kind
of engage with them, you may
421
00:25:31,695 --> 00:25:33,945
start seeing more of those signs.
422
00:25:34,395 --> 00:25:34,425
Mm.
423
00:25:35,325 --> 00:25:40,215
But sometimes it's worth just continuing
on that process and gradually building
424
00:25:40,215 --> 00:25:46,695
the relationship over time so that they
feel comfortable coming to you and having
425
00:25:46,695 --> 00:25:50,355
that space over for someone to be able to
come to you by building that relationship,
426
00:25:50,655 --> 00:25:52,215
bringing them into community.
427
00:25:52,889 --> 00:25:57,210
They feel like they're not so
isolated and you know, not everybody's
428
00:25:57,210 --> 00:25:58,560
built for that kind of work.
429
00:25:58,830 --> 00:26:01,860
But as I said, for those that
are, those are the things I
430
00:26:01,860 --> 00:26:03,000
would encourage them to do.
431
00:26:03,300 --> 00:26:06,510
Everybody's different in terms of what
kind of conversations and how it's
432
00:26:06,510 --> 00:26:11,100
best to engage with them, what kind of
community they're gonna be drawn to.
433
00:26:11,399 --> 00:26:15,030
You know, certain people might
want to, you know, be drawn to the,
434
00:26:15,510 --> 00:26:19,470
the local bowls club or playing
golf or whatever it might be.
435
00:26:19,679 --> 00:26:23,490
Whilst others, it might be, you
know, just a cup of tea or a cup
436
00:26:23,490 --> 00:26:25,409
of coffee or whatever it might be.
437
00:26:25,409 --> 00:26:29,310
As I said, the, the hobbies and
engaging people in those kind of
438
00:26:29,310 --> 00:26:33,689
things is a good way to kind of break
down those barriers where a whole
439
00:26:33,689 --> 00:26:36,810
myriad of issues can be facilitated.
440
00:26:36,810 --> 00:26:40,590
And elder abuse is just one of those,
like you mentioned, in relation to
441
00:26:40,590 --> 00:26:43,679
loneliness, mental health and physical
health and all those kind of things.
442
00:26:43,980 --> 00:26:45,899
Those things all are kind of.
443
00:26:46,335 --> 00:26:50,805
Venn diagram and the, yeah, the kind of
connection between a lot of these things
444
00:26:51,195 --> 00:26:57,375
is, as I said, the first line of defense
against a lot of these issues is community
445
00:26:57,375 --> 00:26:59,775
and being engaged with your community.
446
00:26:59,835 --> 00:27:04,275
And so having those connections
beyond just your family can
447
00:27:04,275 --> 00:27:08,025
often be a resource for people
when engaging with their family.
448
00:27:08,955 --> 00:27:14,715
I love just the simplicity of what you
said earlier in relation to the response,
449
00:27:14,715 --> 00:27:18,165
like you asking a question and then just
waiting to see what their response is.
450
00:27:18,165 --> 00:27:22,185
And you can clearly see like when people
do light up and they do get excited
451
00:27:22,185 --> 00:27:25,395
talking about their family and their
grandchildren and, and things like that.
452
00:27:25,395 --> 00:27:28,575
So I think that, like you said,
that there's so many cues.
453
00:27:28,575 --> 00:27:33,705
So, and you know, the thing is that it
can be a process, but the beautiful thing
454
00:27:33,705 --> 00:27:37,515
is that it's a win-win, you know, because
you're actually getting to know someone
455
00:27:37,515 --> 00:27:41,385
within your community and, and that's, you
know, that's always a beautiful thing to
456
00:27:41,385 --> 00:27:43,095
actually get to know a neighbor, you know?
457
00:27:43,635 --> 00:27:45,225
And listen, it's a two-way street.
458
00:27:45,285 --> 00:27:45,345
You
459
00:27:45,975 --> 00:27:46,635
never know what's
460
00:27:46,635 --> 00:27:49,695
gonna happen in relation to yourself,
where you may need to rely on that person.
461
00:27:49,965 --> 00:27:50,235
Yeah.
462
00:27:50,295 --> 00:27:50,565
Um,
463
00:27:50,775 --> 00:27:54,525
but I mean, as I said, we often,
in terms of the law, I should
464
00:27:54,525 --> 00:27:59,235
mention and in relation to the
legal solutions are very different.
465
00:27:59,295 --> 00:28:05,955
But they are often, I would say at the end
or something that would be considered, you
466
00:28:05,955 --> 00:28:11,865
know, once you've kind of engaged in these
processes or if it's clear that there's
467
00:28:11,955 --> 00:28:13,635
an emergency and an immediate risk.
468
00:28:13,635 --> 00:28:18,165
So obviously contacting the police if
there's an immediate threat or risk
469
00:28:18,165 --> 00:28:24,555
of harm, so violence, other things, or
engaging with a service such as ours
470
00:28:24,555 --> 00:28:29,445
to assist in relation to approaching
the court for legal protection.
471
00:28:30,075 --> 00:28:34,725
But in terms of the stage where you're
not sure you're worried about someone.
472
00:28:35,400 --> 00:28:38,550
Rather than you know that something
is happening and you, there needs
473
00:28:38,550 --> 00:28:44,310
to be a direct intervention at that
time, is to engage with the person
474
00:28:44,520 --> 00:28:46,140
and bring them into community.
475
00:28:46,200 --> 00:28:46,890
That's what I advise.
476
00:28:48,840 --> 00:28:52,080
It's funny 'cause that's exactly my, what
was gonna be my next question will was
477
00:28:52,290 --> 00:28:57,060
like, if you feel like that there is an
immediate threat or you feel like that you
478
00:28:57,060 --> 00:29:01,140
have got concerns, that there is something
going on, what was the next step?
479
00:29:01,140 --> 00:29:03,000
So thanks for answering that one.
480
00:29:03,030 --> 00:29:04,800
You've jumped ahead,
you'll do me out of a job.
481
00:29:06,420 --> 00:29:11,340
Um, and there's also organizations
such as Seniors Rights Victoria here
482
00:29:11,340 --> 00:29:15,030
in Victoria isn't there, that you
can also refer people to, to get
483
00:29:15,030 --> 00:29:16,740
to know what their rights are and
484
00:29:16,920 --> 00:29:17,580
get advice.
485
00:29:17,580 --> 00:29:18,540
Yeah, absolutely.
486
00:29:18,630 --> 00:29:18,690
Yeah.
487
00:29:18,690 --> 00:29:24,330
Our seniors rights, they're there to
talk to people and advise them and to
488
00:29:24,330 --> 00:29:27,750
know our services similar to seniors
rights and that, we'll, we'll talk
489
00:29:27,750 --> 00:29:31,740
you through if you're concerned or
if you think you are concerned about
490
00:29:31,740 --> 00:29:35,250
yourself or, so, as I said, the one
thing I would say in relation to
491
00:29:35,310 --> 00:29:38,280
engaging with a solicitor is that.
492
00:29:38,774 --> 00:29:41,355
For instance, for ourselves, we
can't give third party advice.
493
00:29:41,355 --> 00:29:46,125
So if you are concerned about a third
party, then the best thing I would
494
00:29:46,125 --> 00:29:49,995
say is to encourage them to speak to
someone and get that legal advice.
495
00:29:50,415 --> 00:29:53,985
And just on that, will, I've done
talks at daycare centers and things
496
00:29:53,985 --> 00:29:56,115
like that to, to older groups.
497
00:29:56,115 --> 00:29:59,565
Something that I've found that
there's been some hesitation
498
00:29:59,565 --> 00:30:04,905
with is, is that people aren't
confident to know what the law is.
499
00:30:05,325 --> 00:30:09,284
Uh, and I've suggested to them that
that's nothing to worry about because
500
00:30:09,524 --> 00:30:12,675
there's people like you will, that
they go to and you know the law
501
00:30:13,784 --> 00:30:14,205
apparently.
502
00:30:14,205 --> 00:30:19,905
So, um, uh, yes, I would say that
knowledge is powerful for people.
503
00:30:20,205 --> 00:30:23,145
So, you know, it's worth people
taking the time to try and
504
00:30:23,145 --> 00:30:24,405
understand these things, but.
505
00:30:24,930 --> 00:30:28,890
Especially in this space, it is kind
of common sense in a lot of senses.
506
00:30:29,100 --> 00:30:32,310
The kind of, the bit of the smell
test, the pub test, and what the
507
00:30:32,340 --> 00:30:34,860
lawyers say is the man off the bus.
508
00:30:35,190 --> 00:30:40,170
And that's why I say I, I often
find that most people have a pretty
509
00:30:40,170 --> 00:30:42,000
good nose for this kind of thing.
510
00:30:42,525 --> 00:30:47,385
And that's what I found from my
engagement with older people is that
511
00:30:47,655 --> 00:30:51,435
they'll often approach me and say, I've
got these concerns about my friend,
512
00:30:51,825 --> 00:30:58,365
and they're spot on in terms of their
suspicions that this is not right and
513
00:30:58,605 --> 00:31:00,765
this is potentially illegal behavior.
514
00:31:01,395 --> 00:31:05,925
So most people's instincts in relation
to this area in particular in relation to
515
00:31:06,075 --> 00:31:11,295
elder abuse and concerns about someone's
estate, that things going awry there
516
00:31:11,355 --> 00:31:16,095
is pretty spot on in terms of the kind
of legislation, the Family Violence
517
00:31:16,095 --> 00:31:20,475
Protection Act is actually relatively
straightforward in its drafting 'cause
518
00:31:20,475 --> 00:31:22,575
it's a relatively modern legislation.
519
00:31:22,575 --> 00:31:24,375
We're not talking about
things that go back.
520
00:31:24,465 --> 00:31:27,645
Certain parts of the law that go
back to 300 years that are much
521
00:31:27,645 --> 00:31:29,625
more archaic and complicated.
522
00:31:30,555 --> 00:31:35,535
It's in its execution and its subject
matter that it is complicated.
523
00:31:35,955 --> 00:31:40,935
The messiness of real life that often
interferes with what lawyers would like.
524
00:31:41,445 --> 00:31:46,064
To be able to deal within legislation
and the lack of that history.
525
00:31:46,844 --> 00:31:52,274
You know, family violence wasn't
necessarily considered a crime until
526
00:31:52,274 --> 00:31:57,135
relatively recently, and so you have
this situation where the kind of
527
00:31:57,135 --> 00:32:03,104
history is short and so often we're
kind of developing it now, developing
528
00:32:03,314 --> 00:32:06,195
what's called the jurisprudence in
relation to these matters are relevant
529
00:32:06,614 --> 00:32:08,175
compared to other areas of law.
530
00:32:08,564 --> 00:32:13,274
It's quite young, so as I said, I
often defer to people's instincts
531
00:32:13,395 --> 00:32:14,685
in relation to these things.
532
00:32:14,804 --> 00:32:21,645
If you think your friend is at risk or
is being controlled or used by one of
533
00:32:21,645 --> 00:32:26,774
their relatives, I'll not second guess
you by bringing up a certain case and
534
00:32:26,774 --> 00:32:28,544
say, well, this is, this says that.
535
00:32:28,544 --> 00:32:30,074
That's probably not accurate.
536
00:32:30,675 --> 00:32:32,415
That's not what the law says.
537
00:32:32,504 --> 00:32:35,775
I'll often defer to people in
the community who have a very
538
00:32:35,775 --> 00:32:37,035
good sense about these things.
539
00:32:37,035 --> 00:32:40,905
And then it can be tested against
the kind of, the, the current
540
00:32:41,115 --> 00:32:44,925
legislation rather than working
the other way around, I guess.
541
00:32:45,405 --> 00:32:49,845
So let's have a think about, or
probably move more really focusing
542
00:32:49,850 --> 00:32:51,585
on the law aspect and the estate.
543
00:32:51,675 --> 00:32:51,765
Mm-hmm.
544
00:32:52,065 --> 00:32:53,955
Planning aspect of things.
545
00:32:54,465 --> 00:33:00,405
So how can seniors, you know, ensure
that their wishes and what they
546
00:33:00,405 --> 00:33:04,395
want to happen and their values,
uh, actually legally binding?
547
00:33:04,395 --> 00:33:05,475
What do they have to do?
548
00:33:05,595 --> 00:33:06,915
Is it through a will or?
549
00:33:07,004 --> 00:33:07,485
Absolutely.
550
00:33:07,485 --> 00:33:13,065
So if you don't have a will that lays
out clear language, how you wish your
551
00:33:13,065 --> 00:33:18,285
estate and everything you own to be
distributed upon your passing, then
552
00:33:18,285 --> 00:33:19,905
you'll pass what's called intestate.
553
00:33:20,535 --> 00:33:22,695
Now, intestate is pretty hard and fast.
554
00:33:22,695 --> 00:33:24,465
It's just what the court determines.
555
00:33:24,780 --> 00:33:30,060
And it's basically the spouse being the
first in line, children being the second.
556
00:33:30,360 --> 00:33:34,200
I think it's parents after that, and then
it kind of goes down a hierarchy with
557
00:33:34,200 --> 00:33:36,360
siblings, cousins, that kind of thing.
558
00:33:36,600 --> 00:33:41,790
So it really takes the control out of your
hands in terms of who gets what and when.
559
00:33:42,510 --> 00:33:46,140
So will can be as simple or as
complicated as you'd like it to be.
560
00:33:46,140 --> 00:33:50,100
Really, there's a lot of powerful
things you can do with a will,
561
00:33:50,100 --> 00:33:53,190
especially if you have a larger estate
that you wish to protect through
562
00:33:53,250 --> 00:33:54,840
what's called testamentary trust.
563
00:33:54,840 --> 00:33:58,320
But then we're getting very much into the
weeds simulation, to the actual drafting.
564
00:33:58,320 --> 00:34:03,210
But if you have, I always say
to people, the will is gonna be
565
00:34:03,270 --> 00:34:06,360
as complex as both your estate.
566
00:34:06,810 --> 00:34:10,020
So what you own, what
you own is complicated.
567
00:34:10,409 --> 00:34:13,770
Some people have quite
sophisticated financial arrangements
568
00:34:13,770 --> 00:34:14,940
and property arrangements.
569
00:34:15,449 --> 00:34:19,920
Then your will is gonna reflect
that, or should reflect that and
570
00:34:19,980 --> 00:34:22,199
or if your family is complicated.
571
00:34:23,130 --> 00:34:30,210
So let's say you have step siblings,
stepchildren, your children have
572
00:34:30,210 --> 00:34:32,520
stepchildren or more things like that.
573
00:34:33,090 --> 00:34:37,320
People's families are very complicated
and can be very complicated, where
574
00:34:37,320 --> 00:34:42,240
it's not just, I distribute this
to my child or my partner, the
575
00:34:42,240 --> 00:34:43,710
will's gonna have to reflect that.
576
00:34:44,310 --> 00:34:51,060
So the way to ensure that it does
reflect what you wish to happen,
577
00:34:51,780 --> 00:34:56,610
especially if it's complicated, is to
engage a solicitor to draft your will.
578
00:34:57,270 --> 00:35:01,980
Wills compared to a lot of other
legal work are relatively inexpensive
579
00:35:02,610 --> 00:35:06,690
and currently the process in
relation to the creation of a will
580
00:35:06,900 --> 00:35:08,310
is simpler than it's ever been.
581
00:35:08,940 --> 00:35:13,470
And the reason for that is
through technology, essentially.
582
00:35:13,530 --> 00:35:18,060
The main thing is that what actually
sparked this big kind of change
583
00:35:18,060 --> 00:35:21,690
in shift was the COVID pandemic.
584
00:35:22,754 --> 00:35:27,645
Social distancing obviously still needed
to be kept being made over that period.
585
00:35:27,915 --> 00:35:31,964
And so that caused a lot of solicitors
to innovate in relation to how
586
00:35:31,964 --> 00:35:34,154
they went about crafting wills.
587
00:35:34,154 --> 00:35:39,404
And it's become a much easier and more
efficient process where essentially
588
00:35:39,495 --> 00:35:43,995
it can all be done remotely, including
the signing and the witnessing can
589
00:35:43,995 --> 00:35:45,705
all be done electronically these days.
590
00:35:45,705 --> 00:35:50,685
So especially for people with limited
mobility and limited access to
591
00:35:50,685 --> 00:35:52,725
transportation, that's a big boom.
592
00:35:53,415 --> 00:35:53,654
That's great.
593
00:35:54,225 --> 00:35:57,765
And so essentially, if
you are looking for.
594
00:35:57,825 --> 00:36:02,415
A solicitor, a good place to go
is the Law Institute of Victoria.
595
00:36:02,685 --> 00:36:07,935
Or if you are concerned about whether
you need a will or whether you need to
596
00:36:07,935 --> 00:36:11,625
update your will, if you've got a will,
but you did it 30 odd years ago and you're
597
00:36:11,625 --> 00:36:16,605
not sure whether it's fit for purpose,
again, a organization like the CLC or
598
00:36:16,605 --> 00:36:20,805
Community Legal Center or senior's rights
to just ask them and then they may be
599
00:36:20,805 --> 00:36:24,404
able to assist you for a referral for
someone who will draft that will for you.
600
00:36:24,884 --> 00:36:30,495
So as you said, the reason why getting a
lawyer to draft your will is not just that
601
00:36:30,555 --> 00:36:35,024
they do that work, they draft it and they
take all the details and they do all that
602
00:36:35,085 --> 00:36:39,884
work for you, and they'll talk you through
how to effectuate what you want to happen.
603
00:36:39,944 --> 00:36:44,294
Through the drafting of the will, they
also take on the responsibility of making
604
00:36:44,294 --> 00:36:46,335
sure that it's accurate and it works.
605
00:36:46,424 --> 00:36:51,435
So you can essentially write to rely
upon the expertise of the solicitor,
606
00:36:51,734 --> 00:36:53,205
the drafts that will for you.
607
00:36:53,745 --> 00:36:55,935
Whereas if you do a do it yourself will.
608
00:36:56,415 --> 00:37:00,585
Often it's a really simple,
straightforward will, they can work.
609
00:37:01,125 --> 00:37:05,415
But if you get something wrong in the
instructions and it's not signed or
610
00:37:05,415 --> 00:37:10,275
witnessed correctly or how it's worded
is not clear, you may end up in a
611
00:37:10,275 --> 00:37:14,265
situation where the court rejects that
will and you end up in a test date state.
612
00:37:15,045 --> 00:37:19,065
So as I said, that's the best
way to make sure your wishes are
613
00:37:19,065 --> 00:37:23,325
executed correctly, is by engaging
the solicitor to draft it for you.
614
00:37:24,240 --> 00:37:29,370
And we have links to all of the law
institutes in every state of Australia
615
00:37:29,370 --> 00:37:33,900
on the critical info support section
of the website because Fantastic.
616
00:37:34,020 --> 00:37:37,590
As we're aware, will, the laws
are different in every state
617
00:37:37,590 --> 00:37:38,880
of Australia, aren't they?
618
00:37:38,885 --> 00:37:39,005
That's correct.
619
00:37:39,360 --> 00:37:39,960
That's correct.
620
00:37:40,260 --> 00:37:45,390
Um, so there is some uniformity in
relation to wills and estates, but there
621
00:37:45,390 --> 00:37:49,590
is obviously big differences, especially
in relation to the probate process.
622
00:37:50,160 --> 00:37:55,140
So this is why I wouldn't want to
give any kind of very specific advice
623
00:37:55,500 --> 00:37:57,360
in relation to particular processes.
624
00:37:57,360 --> 00:38:01,890
Victoria, recognizing that if someone's
listening to this in Queensland, I may
625
00:38:01,890 --> 00:38:06,390
go through a very D or a particular
places like Northern Territory or a CT.
626
00:38:06,780 --> 00:38:08,730
That may be a very different process.
627
00:38:09,510 --> 00:38:12,990
And can you just explain to people
what the word probate means?
628
00:38:13,230 --> 00:38:13,830
Oh, okay.
629
00:38:14,520 --> 00:38:15,090
That's a good one.
630
00:38:15,270 --> 00:38:15,690
That's come up.
631
00:38:15,690 --> 00:38:22,800
So probate is the process by which
a will is determined to be valid.
632
00:38:23,820 --> 00:38:29,340
Empowers the executor, which is
the person that is appointed by
633
00:38:29,340 --> 00:38:33,510
the person that's drafted the will
to execute what is in the will.
634
00:38:33,720 --> 00:38:36,450
So it can essentially
do what the will says.
635
00:38:36,690 --> 00:38:40,140
So to distribute the estate and plan
the funeral and those kind of things.
636
00:38:40,800 --> 00:38:43,530
So essentially what's required in
relation to that, and as I said, I'll
637
00:38:43,530 --> 00:38:46,890
go very broadly because there are some
differences in nuances, depending on what
638
00:38:46,890 --> 00:38:53,700
state you're in, is the documentation
is filed with the court saying that this
639
00:38:53,700 --> 00:38:57,805
is the final will that they drafted,
it's properly executed and the person's
640
00:38:57,900 --> 00:39:00,090
passed away and I'm the executor.
641
00:39:00,810 --> 00:39:01,560
And you file it.
642
00:39:01,920 --> 00:39:04,980
And that's looked at by the
probate office of any particular
643
00:39:04,980 --> 00:39:10,500
jurisdiction and they will then it's
advertised, uh, that the person has
644
00:39:10,500 --> 00:39:12,150
passed and probate is being sought.
645
00:39:12,450 --> 00:39:15,000
And that's essentially when someone
else can potentially put their
646
00:39:15,000 --> 00:39:18,570
hand up and say, wait a second,
I should be included on that.
647
00:39:18,570 --> 00:39:21,870
Will or I wanna challenge, I've
actually got a later in time will.
648
00:39:22,545 --> 00:39:26,235
So the most recent in time Will is the
one that that runs, which is why I was
649
00:39:26,235 --> 00:39:30,045
saying before about, you know, this
constant churning of wills is often
650
00:39:30,045 --> 00:39:31,424
a sign of something wrong happening.
651
00:39:31,815 --> 00:39:36,645
But as I said, so probate is the
process by which the court determines
652
00:39:36,645 --> 00:39:43,575
that this is the valid will, and then
essentially gives the person a document
653
00:39:43,785 --> 00:39:49,365
that the executor is able to go to
real estate agents, banks, any other
654
00:39:49,365 --> 00:39:54,555
institution, and say, I act on behalf
of the estate and therefore can deal
655
00:39:54,555 --> 00:39:57,765
with the property owned by that person.
656
00:39:58,154 --> 00:40:01,575
It's most important in particular in
relation to what lawyers call real
657
00:40:01,575 --> 00:40:04,964
property, but that's kind of property,
homes, land, that kind of thing.
658
00:40:05,384 --> 00:40:09,525
In order to transfer land of a
deceased person, you need to have
659
00:40:09,525 --> 00:40:12,645
something from the court saying
that I have the right to do that.
660
00:40:13,455 --> 00:40:16,485
And that's a really good example
you make because to transfer
661
00:40:16,485 --> 00:40:18,585
land, the probate is required.
662
00:40:18,590 --> 00:40:18,910
Mm-hmm.
663
00:40:19,035 --> 00:40:22,395
And I, I wanna ask you in a
minute about executors and, and
664
00:40:22,395 --> 00:40:23,985
the role of executors, but Sure.
665
00:40:23,985 --> 00:40:25,725
We'll, we'll hold that for a moment.
666
00:40:26,055 --> 00:40:31,095
The scenario when our friend died was he
had a will and his two adult children were
667
00:40:31,125 --> 00:40:34,185
traveling from interstate, so, oh, sorry.
668
00:40:34,275 --> 00:40:35,325
Overseas I should say.
669
00:40:35,715 --> 00:40:40,425
And I rang the probate office to
ascertain whether we needed to go
670
00:40:40,425 --> 00:40:42,135
through the probate office or not.
671
00:40:42,135 --> 00:40:47,235
And this was in Victoria, and,
and they said that it depends on
672
00:40:47,505 --> 00:40:52,725
whether the organizations that
we were dealing with required.
673
00:40:53,444 --> 00:40:54,404
Letter of probate.
674
00:40:54,794 --> 00:40:55,785
I'm like, okay.
675
00:40:56,055 --> 00:41:00,495
So then I had to actually ring or
collectively when the family arrived,
676
00:41:00,794 --> 00:41:04,484
we had to ring all of the different
organizations and all the accounts we
677
00:41:04,484 --> 00:41:08,265
needed to close to work out whether
they needed the probate to, whether
678
00:41:08,265 --> 00:41:09,734
we needed to go through the process.
679
00:41:10,334 --> 00:41:11,714
That was very confusing.
680
00:41:11,774 --> 00:41:14,774
Just, just on a personal note,
that one, yes, it can be.
681
00:41:14,774 --> 00:41:14,924
Yeah.
682
00:41:15,705 --> 00:41:18,765
Um, so the one that I personally
found when we went through that
683
00:41:18,765 --> 00:41:22,935
process was the bank was the one
that was really the deciding factor.
684
00:41:23,205 --> 00:41:27,524
He didn't have any property owned to him
in Australia at, at, well, we didn't have
685
00:41:27,524 --> 00:41:29,174
any property owned to him at that time.
686
00:41:29,625 --> 00:41:33,285
So it meant that the bank was the one
that was the deciding factor about
687
00:41:33,285 --> 00:41:34,995
whether we needed to get probate or not.
688
00:41:34,995 --> 00:41:37,395
And we didn't have to at that
particular point in time.
689
00:41:37,935 --> 00:41:41,120
But is that a common scenario that
what I went through will Absolutely.
690
00:41:41,120 --> 00:41:41,240
Okay.
691
00:41:41,444 --> 00:41:41,805
Absolutely.
692
00:41:42,044 --> 00:41:42,314
Great.
693
00:41:42,345 --> 00:41:45,975
Um, and the part of the difficulty
is that it's not standardized.
694
00:41:46,365 --> 00:41:46,665
So
695
00:41:46,665 --> 00:41:52,484
each institution bank in particular has
different standards and monetary amounts,
696
00:41:52,845 --> 00:41:57,884
the required in each bank account in order
to need a letter of administration or not.
697
00:41:58,815 --> 00:42:04,125
I've actually been thinking that I think
that banks should follow the path of
698
00:42:04,154 --> 00:42:09,015
superannuation funds in relation to the
distribution of funds that are held in
699
00:42:09,015 --> 00:42:14,205
accounts rather than the kind of process
that's currently in place, at least to
700
00:42:14,205 --> 00:42:16,245
allow them to go up to a higher threshold.
701
00:42:17,234 --> 00:42:21,315
Uh, currently with superannuation funds,
you don't need a letter of administration
702
00:42:21,315 --> 00:42:24,435
or a probate to in order to access super.
703
00:42:24,870 --> 00:42:28,170
The person just nominates
someone when they set up their
704
00:42:28,170 --> 00:42:31,890
superannuation account that they
will get what's contained within it.
705
00:42:32,160 --> 00:42:34,560
And I think it would be pretty
straightforward for banks to have a
706
00:42:34,560 --> 00:42:39,509
similar situation where someone nominates
the person and then all that's required
707
00:42:39,509 --> 00:42:43,200
is the death of certificate and evidence
of the person whom they're requiring.
708
00:42:43,529 --> 00:42:47,940
Now obviously that would change for
certain amounts over a certain threshold.
709
00:42:48,360 --> 00:42:53,940
I would've thought that anything close
to or plus 70 to a hundred thousand
710
00:42:53,940 --> 00:42:58,590
dollars of value would be something that
would require a letter of administration.
711
00:42:58,620 --> 00:43:02,430
'cause it really is about the value
of what's contained within it is
712
00:43:02,430 --> 00:43:03,630
how the court kind of looks at it.
713
00:43:04,170 --> 00:43:06,300
So as I said, it is very complicated.
714
00:43:06,570 --> 00:43:10,380
Shares as well is another one that's
an absolute nightmare in terms of
715
00:43:10,440 --> 00:43:15,240
distributing or getting shares through
the As SX or elsewhere in order to dispose
716
00:43:15,240 --> 00:43:20,670
of the shares and distribute the shares
because they're financial, because of the,
717
00:43:20,970 --> 00:43:24,180
the nature of them as being a kind of own.
718
00:43:24,690 --> 00:43:31,860
Property, but different from personal
property and different from real property.
719
00:43:32,160 --> 00:43:36,720
It's private property, classical
sense of the term, and that you're
720
00:43:36,720 --> 00:43:37,980
owning a chunk of a company.
721
00:43:38,220 --> 00:43:40,110
They're very difficult
to deal with as well.
722
00:43:40,170 --> 00:43:45,330
You know, in order, I think in order to
dispose of one share, you require letters
723
00:43:45,330 --> 00:43:47,370
of administrations in some circumstances.
724
00:43:47,370 --> 00:43:51,569
So it is, shares are another one that's
really, really difficult to deal with
725
00:43:52,230 --> 00:43:57,150
and to determine what should happen
with in relation to the estate planning.
726
00:43:57,150 --> 00:44:01,710
So those things, what we've talked
about goes back to what we're talking
727
00:44:01,710 --> 00:44:05,549
about in terms of what people should
think about when they're doing their
728
00:44:05,549 --> 00:44:13,799
will, is how are my things owned and
what institutions are they held by?
729
00:44:14,430 --> 00:44:21,029
And do my executor and or
beneficiaries know about these things?
730
00:44:21,495 --> 00:44:22,305
A lot of ways do they even
731
00:44:22,305 --> 00:44:26,100
know that they're actually nominated
a beneficiary as beneficiary executive
732
00:44:26,160 --> 00:44:28,575
or executor and what that role entails.
733
00:44:28,814 --> 00:44:28,875
Yeah.
734
00:44:28,935 --> 00:44:33,524
You know, and I think, I think that'd
be really a great for you to, because
735
00:44:33,585 --> 00:44:38,774
I know perhaps people may be unfamiliar
with, with just what the requirements
736
00:44:38,774 --> 00:44:41,745
are in relation to your death.
737
00:44:41,745 --> 00:44:44,984
We've talked about wills and the, and we,
it'd be great if you can go through the
738
00:44:44,984 --> 00:44:50,654
role of executor, but also what if we are
hospitalized or what if we're overseas.
739
00:44:51,015 --> 00:44:54,375
I know that as a family we
have power as of attorney.
740
00:44:54,674 --> 00:44:58,754
And then we also, I've just
gone through the process with my
741
00:44:58,754 --> 00:45:03,555
mum of making sure that she had
an updated advanced care plan.
742
00:45:03,555 --> 00:45:09,044
So these are all from my understanding
documents that we can actually use
743
00:45:09,075 --> 00:45:11,595
to ensure our wishes are followed.
744
00:45:12,075 --> 00:45:17,205
Can you perhaps talk through, and I don't
know my mind in which audio start will,
745
00:45:17,444 --> 00:45:19,365
but if you can talk through perhaps the.
746
00:45:20,130 --> 00:45:24,750
Those three documents and the elements
and the parties associated with them.
747
00:45:25,140 --> 00:45:29,850
Just so everyone is clear who is the
decision maker and why they're in place.
748
00:45:29,940 --> 00:45:30,030
Mm-hmm.
749
00:45:30,270 --> 00:45:31,980
Sometimes that's really
good to understand.
750
00:45:32,610 --> 00:45:32,700
Sure.
751
00:45:32,700 --> 00:45:38,250
They kind of, the, the trinity of estate
planning and I, they're the things that
752
00:45:38,520 --> 00:45:43,020
people should consider when the kind of
legal things that they should consider.
753
00:45:43,620 --> 00:45:47,130
There are some periphery things, but I
don't think we need to talk about those.
754
00:45:47,400 --> 00:45:50,700
Mainly those relate to tax and
how you can kind of, they're more
755
00:45:50,700 --> 00:45:54,240
questions for accountants, but in
terms of the three, I'll probably
756
00:45:54,240 --> 00:45:56,730
start with the executive, 'cause
we've just been talking about wills.
757
00:45:57,450 --> 00:46:01,200
Like I said, you can appoint, an executor
should be someone that you trust.
758
00:46:02,010 --> 00:46:04,350
You should have spoken to
'em about being an executor.
759
00:46:05,130 --> 00:46:09,240
You should get them to understand
what is contained within your estate.
760
00:46:09,540 --> 00:46:15,300
They should have a copy of your will that
appoints them as executor and you can
761
00:46:15,300 --> 00:46:17,340
appoint multiple people to fill that role.
762
00:46:17,790 --> 00:46:19,200
But just be mindful.
763
00:46:19,560 --> 00:46:23,550
That you don't want a situation
where you're appointing two people
764
00:46:23,880 --> 00:46:25,770
and they never agree on anything.
765
00:46:26,190 --> 00:46:30,570
If you are appointing your two children
and you know that they disagree about
766
00:46:30,570 --> 00:46:36,030
everything and like to argue about
everything, do not appoint them as
767
00:46:36,030 --> 00:46:40,950
co-executors because you're just setting
yourself up for disaster in relation
768
00:46:40,950 --> 00:46:47,340
to them just arguing and potentially
litigating in relation to your will.
769
00:46:47,340 --> 00:46:51,600
So just be mindful when appointing
multiple solicitors, I mean executors,
770
00:46:51,600 --> 00:46:56,580
sorry, because there needs to be
agreeance between them for anything to
771
00:46:56,580 --> 00:46:59,880
happen in relation to the distribution
of the property under the will.
772
00:46:59,970 --> 00:47:04,380
So if you are gonna appoint multiple
executives, I generally say it's best
773
00:47:04,380 --> 00:47:08,400
to have at least odd numbers so that
there's like a, they can kind of vote.
774
00:47:08,985 --> 00:47:13,785
But as I said, the generally
one and on alternative is
775
00:47:13,785 --> 00:47:14,985
the best way to go about it.
776
00:47:14,985 --> 00:47:20,145
So for the executive themselves, they
don't have to agree to be the executive.
777
00:47:20,145 --> 00:47:23,295
They can refuse to take up the position
'cause it does involve quite a lot
778
00:47:23,295 --> 00:47:26,535
of work, which is why it's important
to talk to the person who you are
779
00:47:26,535 --> 00:47:29,475
thinking of appointing and checking
that they're willing to do it.
780
00:47:30,345 --> 00:47:35,655
It's also worth appointing someone who,
you know, this comes up quite a bit,
781
00:47:36,165 --> 00:47:40,635
where someone will appoint their brother
who's two years younger than them and
782
00:47:40,635 --> 00:47:44,205
they'll do it in their, maybe in their
mid sixties and the person passes in
783
00:47:44,205 --> 00:47:51,225
their eighties and they've appointed a
78-year-old or even older to be their
784
00:47:51,230 --> 00:47:57,975
executor or the executor's past for,
so it, it's often worth thinking about,
785
00:47:57,975 --> 00:48:05,205
well, is this person going to be fit and
able to be the executor when I've passed?
786
00:48:05,655 --> 00:48:05,865
Okay.
787
00:48:05,865 --> 00:48:07,035
Not now.
788
00:48:08,135 --> 00:48:09,555
If that makes sense, you know,
789
00:48:10,165 --> 00:48:10,515
often.
790
00:48:10,620 --> 00:48:13,890
Yeah, and I'd I'd even say that,
you know, it's not something
791
00:48:13,890 --> 00:48:17,880
that, you know, I, I know that
we actually review our, our legal
792
00:48:17,880 --> 00:48:20,190
documents every year at the tax time.
793
00:48:20,820 --> 00:48:23,400
So we are making sure that it's
actually reflecting our current
794
00:48:23,400 --> 00:48:25,920
views and our current situation.
795
00:48:26,280 --> 00:48:29,430
You know, you very thorough, you
know, not like I know, I know.
796
00:48:29,430 --> 00:48:32,520
Because yeah, there is, I'm sure
you've seen many of those scenarios
797
00:48:32,520 --> 00:48:36,330
where it's something they wrote this
will 30 years ago and it's never been
798
00:48:36,330 --> 00:48:40,020
looked at since, and then everyone
listed is probably dead, you know?
799
00:48:40,050 --> 00:48:40,530
Yeah.
800
00:48:40,530 --> 00:48:44,340
And, and when, when I give these
speeches and talks, I often say,
801
00:48:44,400 --> 00:48:49,290
I don't say to people every year,
even though that would be the best
802
00:48:49,735 --> 00:48:52,075
you, you gotta start somewhere,
but I'm aiming high will.
803
00:48:52,265 --> 00:48:52,555
Yeah.
804
00:48:52,555 --> 00:48:53,640
You're aiming very high.
805
00:48:54,330 --> 00:48:59,670
I say at least every 10 years, a
decade is a good kind of measure
806
00:49:00,000 --> 00:49:04,740
of kind of the changes in our lives
and our opinions and the like, but.
807
00:49:05,295 --> 00:49:09,315
I would say that the older one gets
the, generally I would kind of drop
808
00:49:09,315 --> 00:49:13,635
that to five years and then potentially
if you're getting much older every
809
00:49:13,635 --> 00:49:17,325
year, because things can change pretty
dramatically over a short period of time.
810
00:49:17,565 --> 00:49:22,365
But also just being aware if there is a
big change, both financially or family
811
00:49:22,365 --> 00:49:27,015
wise, someone passes pulling out the,
your legal documents and having a look
812
00:49:27,765 --> 00:49:31,515
and you know, checking that they're
not the executor and things like that.
813
00:49:31,935 --> 00:49:34,665
So, as I said, executor, the
main thing of the takeaway with
814
00:49:34,665 --> 00:49:36,405
that is an appointing executor.
815
00:49:36,405 --> 00:49:39,765
It should be someone that you trust and
someone that you've communicated with
816
00:49:39,765 --> 00:49:41,895
about your wishes and about your estate.
817
00:49:42,490 --> 00:49:42,780
Okay.
818
00:49:43,215 --> 00:49:46,095
So then onto powers of attorney.
819
00:49:46,875 --> 00:49:52,785
Powers of attorney is a very big subject
all on, on its own, but at its core, the
820
00:49:52,785 --> 00:49:56,685
enduring power of attorney, which is the
most common one that people deal with
821
00:49:56,955 --> 00:50:00,105
because as I said, powers of attorney
are quite complex and there's a myriad
822
00:50:00,105 --> 00:50:04,275
of types is the, if I lose capacity.
823
00:50:04,680 --> 00:50:08,700
The person that I've appointed as the
power of attorney can start making
824
00:50:08,700 --> 00:50:13,470
certain decisions as detailed in that
power of attorney in relation to me.
825
00:50:13,770 --> 00:50:17,610
Now, that could be lifestyle
decisions, it could be legal
826
00:50:17,610 --> 00:50:20,400
decisions, it could be financial
decisions, or it could be all three.
827
00:50:21,300 --> 00:50:27,870
And essentially it empowers the
person to one, engage act as our agent
828
00:50:28,380 --> 00:50:33,870
in relation to entering into legal
contracts, things like that, or making
829
00:50:33,870 --> 00:50:38,310
decisions about our lifestyle, where
we live, or those kind of things.
830
00:50:38,310 --> 00:50:43,680
So as people probably guess,
it's a very powerful document.
831
00:50:44,460 --> 00:50:50,580
It empowers someone to really make big
decisions and potentially make very
832
00:50:50,580 --> 00:50:52,890
life-changing decisions on our behalf.
833
00:50:53,790 --> 00:50:57,330
So perhaps out of all of the, the
documents we're gonna talk about
834
00:50:57,390 --> 00:51:00,030
except for advanced care directive,
but that's slightly different,
835
00:51:00,300 --> 00:51:02,160
is one of the most powerful ones.
836
00:51:02,970 --> 00:51:08,009
Should be done with the most care in
terms of who we appoint as our power of
837
00:51:08,009 --> 00:51:13,709
attorney because the issue with the power
of attorney is that it comes, an enduring
838
00:51:13,709 --> 00:51:18,899
power of attorney comes into force when
we lose the capacity to make decisions.
839
00:51:19,589 --> 00:51:24,870
That's why the trust has to be there
because I am no longer going to be
840
00:51:24,870 --> 00:51:29,910
in a position to question directly
the decisions you are making in terms
841
00:51:29,910 --> 00:51:33,689
of in accord, no longer gonna be
able to enter into contracts 'cause
842
00:51:33,689 --> 00:51:35,040
I no longer have the capacity to.
843
00:51:36,299 --> 00:51:36,629
Okay.
844
00:51:37,049 --> 00:51:43,049
So it really is a very powerful thing and
should be done, not entered into lightly.
845
00:51:43,560 --> 00:51:47,250
And you should really take the
time to discuss with the power of
846
00:51:47,250 --> 00:51:49,589
attorney about what your wishes are.
847
00:51:50,279 --> 00:51:53,040
As I said, power of attorney is
different from advanced care directive
848
00:51:53,640 --> 00:51:57,660
and when I get to the advanced care
directive, you might see it might
849
00:51:57,660 --> 00:52:01,770
show some of the, the issues with
the current power of attorney system.
850
00:52:02,160 --> 00:52:04,049
It's kinda a lack of guardrails.
851
00:52:04,470 --> 00:52:06,540
It's a very archaic system.
852
00:52:06,540 --> 00:52:10,230
This is one of those ones that goes
back hundreds of years and a lot of
853
00:52:10,230 --> 00:52:13,740
the kind of concepts and things don't
really marry up with the current
854
00:52:13,799 --> 00:52:19,049
financial, practical, and medical
understandings of things like capacity.
855
00:52:19,529 --> 00:52:23,759
The amount of work that's involved
in having a power of attorney.
856
00:52:24,150 --> 00:52:28,170
I think it's an area that we'll
probably likely to see some reform
857
00:52:28,170 --> 00:52:29,850
in the not too distant future.
858
00:52:30,360 --> 00:52:33,180
But as I said, so power of
attorney, really powerful document.
859
00:52:33,240 --> 00:52:34,020
Take your time.
860
00:52:34,380 --> 00:52:36,690
They're a simple document to draft.
861
00:52:37,140 --> 00:52:39,060
You can get a solicitor,
draft them for you.
862
00:52:39,215 --> 00:52:42,660
They are simple document to draft,
but they're very powerful documents,
863
00:52:42,660 --> 00:52:44,759
so they should be dealt with care.
864
00:52:45,090 --> 00:52:49,350
And if you are acting as a power of
attorney, there's a lot of duties and
865
00:52:49,350 --> 00:52:53,730
responsibilities that fall upon you
that also should be taken very seriously
866
00:52:53,730 --> 00:52:57,990
because breaches of those duties currently
can come with terms of imprisonment.
867
00:52:58,530 --> 00:53:00,360
If there's fraudulent behavior going on.
868
00:53:00,360 --> 00:53:04,230
So, as I said, powers of attorney,
very powerful, very important document
869
00:53:04,650 --> 00:53:06,480
should be taken incredibly seriously.
870
00:53:06,750 --> 00:53:12,480
And as I said, people should take the
time to discuss it, be careful, as I
871
00:53:12,480 --> 00:53:16,950
said, engage and make an informed decision
in relation to a power of attorney.
872
00:53:17,820 --> 00:53:19,470
So that's, any questions about that?
873
00:53:20,490 --> 00:53:24,840
Well, just, just on that, will, I
know that because powers of attorney
874
00:53:24,840 --> 00:53:28,950
really come in to effect when it
can be really, really stressful.
875
00:53:29,340 --> 00:53:29,730
Exactly.
876
00:53:30,030 --> 00:53:34,650
'cause it's generally associated with
a critical incident or an illness or
877
00:53:34,650 --> 00:53:36,330
an accident, something along that line.
878
00:53:36,330 --> 00:53:36,331
Mm-hmm.
879
00:53:36,420 --> 00:53:36,510
Mm-hmm.
880
00:53:36,780 --> 00:53:43,110
So what we did, when my mom updated
her power of attorney, we went and
881
00:53:43,110 --> 00:53:48,120
visited the old school in, in regional
Gippsland, but we went and visited
882
00:53:48,120 --> 00:53:53,280
the bank manager at the bank and we
actually registered the power of attorney
883
00:53:53,580 --> 00:53:55,260
with the bank because that takes.
884
00:53:55,904 --> 00:53:58,455
Let me tell your people weeks Yeah.
885
00:53:58,455 --> 00:53:59,505
To get approved.
886
00:53:59,685 --> 00:53:59,865
Yep.
887
00:54:00,285 --> 00:54:02,924
And actually go through all the
checkpoints to make sure that
888
00:54:02,924 --> 00:54:07,545
they're comfortable with making
sure that should anything happen,
889
00:54:07,785 --> 00:54:09,075
well something will happen.
890
00:54:09,075 --> 00:54:09,825
We're all gonna die.
891
00:54:09,855 --> 00:54:11,235
Let's not kid ourselves.
892
00:54:11,235 --> 00:54:16,785
But should that Power Attorney need
to take effect that, you know, it's,
893
00:54:16,785 --> 00:54:19,515
it's already there and I can walk
in and it's gonna be a lot less
894
00:54:19,515 --> 00:54:20,685
delay than what there would be.
895
00:54:20,685 --> 00:54:21,015
Absolutely.
896
00:54:21,134 --> 00:54:22,335
That's really good advice.
897
00:54:22,335 --> 00:54:24,165
I mean, it's something that
I advise people all the time.
898
00:54:24,165 --> 00:54:27,944
The first thing you should do after
drafting the power of attorney is
899
00:54:27,944 --> 00:54:31,634
distribute it to all the institutions
in which you gauge with regularly, so
900
00:54:31,634 --> 00:54:36,045
that you're not in a position where the
person's kind of walking the bank in order
901
00:54:36,045 --> 00:54:38,745
to get a withdrawal of much needed funds.
902
00:54:39,405 --> 00:54:42,135
Thinking that all I need is the
paperwork and the bank saying,
903
00:54:42,135 --> 00:54:43,545
well, no, we need to process this.
904
00:54:43,545 --> 00:54:47,235
This takes a certain amount of time, but
obviously that it takes a lot of time
905
00:54:47,235 --> 00:54:51,675
because mm-hmm the bank doesn't want
to distribute funds to someone ordering
906
00:54:51,675 --> 00:54:53,655
to be a power of attorney who is not.
907
00:54:54,135 --> 00:54:56,415
And so, as I said,
that's very good advice.
908
00:54:56,685 --> 00:54:58,725
But as I said, power of
attorney, I suspect we're
909
00:54:58,725 --> 00:55:00,315
going to, that's my prediction.
910
00:55:00,615 --> 00:55:03,645
I've been wrong about these things
before, but my prediction is that we'll
911
00:55:03,645 --> 00:55:09,795
see, I think as a, the advanced care
directive being a model that we might
912
00:55:09,795 --> 00:55:13,425
see changes in relation to our powers
of attorney function, particularly
913
00:55:13,425 --> 00:55:18,285
in Victoria, if the government's
in a reforming mood in this area.
914
00:55:18,555 --> 00:55:23,025
But with potential public support and
community engagement in the issue,
915
00:55:23,355 --> 00:55:26,355
I think we might see some changes
in relation to power as of attorney
916
00:55:26,535 --> 00:55:30,945
and how they work, which leads
nicely to advanced care directives.
917
00:55:30,945 --> 00:55:33,825
So Advanced care directives used to be.
918
00:55:34,290 --> 00:55:37,200
Called medical powers of
attorney, which is why there's
919
00:55:37,200 --> 00:55:38,669
a, a correlation between them.
920
00:55:38,790 --> 00:55:42,509
But a lot of the issues we see with powers
of attorneys were even exacerbated in
921
00:55:42,509 --> 00:55:44,370
relation to medical powers of attorney.
922
00:55:44,819 --> 00:55:47,460
'cause previously a medical power
of attorney allowed the person to
923
00:55:47,460 --> 00:55:51,270
make medical decisions in relation
to someone who had lost capacity.
924
00:55:52,589 --> 00:55:56,490
Now back in this was spearheaded by a
member of Victorian Parliament who went
925
00:55:56,490 --> 00:56:00,180
through a very difficult experience
in relation to, I'm not the member's
926
00:56:00,180 --> 00:56:05,160
name, but she went through a very
difficult experience with her own parent
927
00:56:05,549 --> 00:56:09,600
in relation to dealing with medical
powers of attorney and the conflict and
928
00:56:09,600 --> 00:56:14,460
confusion that it would cause in relation
to managing their parents' health.
929
00:56:14,879 --> 00:56:20,850
And so kind of led this, the effort
to reform in this space in Victoria.
930
00:56:21,359 --> 00:56:25,770
Now this is Victoria specific, I think
I haven't checked recently, but I
931
00:56:25,770 --> 00:56:29,430
think there's a lot of changes that are
mimicking much of I. The success we've
932
00:56:29,430 --> 00:56:34,049
had in Victoria, but Victoria was kind of
a leader in this space, and as I said, so
933
00:56:34,049 --> 00:56:38,640
the advanced care directive is different
from a medical power of attorney, as
934
00:56:38,640 --> 00:56:43,410
we've had a lot more safeguards and a
lot more, in some ways is a lot more
935
00:56:43,500 --> 00:56:49,080
intricate and more fit for purpose
in relation to the current way that
936
00:56:49,649 --> 00:56:53,339
both medicine is practiced and array,
these kind of decisions should be made.
937
00:56:54,029 --> 00:56:58,649
The key elements of an advanced care
directive is one, it does remove a lot of
938
00:56:58,649 --> 00:57:00,660
the lawyers being involved, to be honest.
939
00:57:00,990 --> 00:57:07,200
Most hospitals, doctors, age care
facilities there will facilitate
940
00:57:07,200 --> 00:57:09,569
and assist you with drafting
an advanced care directive.
941
00:57:10,470 --> 00:57:13,799
And one of the reasons for that is
the advanced care directive allows
942
00:57:13,799 --> 00:57:20,430
you, as the name suggests, to direct
what kind of treatment you want and
943
00:57:20,430 --> 00:57:21,810
what kind of treatment you don't want.
944
00:57:22,710 --> 00:57:27,480
Both in the form of direct directives
in relation to X type of treatment,
945
00:57:27,839 --> 00:57:33,540
but also in the provision of a value
statement that allows you to, if you've
946
00:57:33,540 --> 00:57:36,509
got religious, philosophical, or other
kind of values that you wish to be
947
00:57:36,509 --> 00:57:38,790
expressed in relation to your treatment.
948
00:57:39,240 --> 00:57:43,650
And in some ways this connects
with the assisted dying legislation
949
00:57:43,650 --> 00:57:45,210
as well, which I won't go into.
950
00:57:45,210 --> 00:57:49,109
That's very, again, another broad
topic, but as I said, there is some
951
00:57:49,109 --> 00:57:56,130
connection there, allows you to dictate
in almost all circumstances what
952
00:57:56,130 --> 00:57:58,020
kind of treatment you are gonna have.
953
00:57:58,710 --> 00:58:02,580
Now that's different from the previous
medical powers of attorney, whereas
954
00:58:02,580 --> 00:58:06,630
purely within the discretion of your
power of attorney, medical power of
955
00:58:06,630 --> 00:58:08,609
attorney, about what kind of treatment.
956
00:58:09,029 --> 00:58:13,080
So it didn't matter if another family
member said they were clear that they
957
00:58:13,080 --> 00:58:18,360
never wanted X, Y, and z. Of treatment,
but the medical power of attorney says no.
958
00:58:18,360 --> 00:58:20,580
That's what I believe
is in the best interest.
959
00:58:21,090 --> 00:58:26,670
And so currently now the advanced care
directive allows you to direct what
960
00:58:26,670 --> 00:58:30,270
the medical treatment decision maker is
going to do, and they're bound by those
961
00:58:30,270 --> 00:58:32,640
directions in almost all circumstances.
962
00:58:33,750 --> 00:58:39,870
That's why you need the advice of a
medical practitioner often to make those
963
00:58:39,870 --> 00:58:43,410
directives because a lawyer doesn't
know, lawyers like to think they know
964
00:58:43,410 --> 00:58:47,220
everything about everything, but we very
rarely step into the realm of medicine.
965
00:58:47,580 --> 00:58:50,520
And so we're not in a position to
advise you about what treatment is
966
00:58:50,520 --> 00:58:56,460
appropriate and what treatments you can
expect or could expect to have performed
967
00:58:56,520 --> 00:58:58,290
in if you have a certain condition.
968
00:58:58,830 --> 00:59:01,350
So as I said that, that's
the kind of difference.
969
00:59:01,710 --> 00:59:03,750
It also has a lot more
safeguards attached.
970
00:59:04,350 --> 00:59:07,440
And Will, can I ask if you, if someone
has a medical power of attorney
971
00:59:07,770 --> 00:59:09,510
and an advanced care directive,
972
00:59:10,110 --> 00:59:10,950
what happens then?
973
00:59:11,550 --> 00:59:14,130
So, medical power of attorneys are still.
974
00:59:14,505 --> 00:59:14,895
Valid.
975
00:59:14,895 --> 00:59:14,925
Okay.
976
00:59:15,495 --> 00:59:19,725
But as soon as you make a advance
care directive, it overrides any
977
00:59:19,725 --> 00:59:21,555
prior medical power of attorney.
978
00:59:22,065 --> 00:59:25,155
So if you had a medical power of attorney
in the past, but you make an advance
979
00:59:25,155 --> 00:59:30,585
care directive that overrides the medical
power of attorney, you essentially, any
980
00:59:30,585 --> 00:59:35,715
medical power of attorney made after the
introduction of advanced care directive
981
00:59:36,165 --> 00:59:39,495
is still technically functioning.
982
00:59:39,915 --> 00:59:44,595
It can be used in some sense, but I
would say it's a very unwise thing to do.
983
00:59:44,925 --> 00:59:48,405
It's very much up for challenge,
I would say if you are wanting to
984
00:59:48,405 --> 00:59:51,435
appoint someone to make medical
decisions for you, the advanced
985
00:59:51,435 --> 00:59:52,815
care directive is the way to do it.
986
00:59:53,565 --> 00:59:57,375
And as I said, contact your
local GP or your local hospital.
987
00:59:57,795 --> 01:00:02,325
They're, they're very keen to have people
complete these because they recognize,
988
01:00:02,325 --> 01:00:06,855
and that's one of the areas where,
where a lot of support came for the
989
01:00:06,855 --> 01:00:11,895
changes was the medical profession and
the hospitals and the nurses, because
990
01:00:11,895 --> 01:00:13,605
it means that they're in a position.
991
01:00:14,055 --> 01:00:18,405
A much more clear position in
relation to dealing with often
992
01:00:18,495 --> 01:00:19,995
families who are in distress.
993
01:00:20,355 --> 01:00:24,405
And so they're very keen to have people
create their advanced care directives, put
994
01:00:24,405 --> 01:00:28,665
them upon their medical file so they have
ready access to them if they need them.
995
01:00:28,725 --> 01:00:30,345
So, as I said, it's it.
996
01:00:30,615 --> 01:00:34,605
It is something that I'm not sure if it's
still happening, but I remember down here
997
01:00:34,605 --> 01:00:39,615
in Frankston, they used to have a service
where nurses would provide assistance
998
01:00:39,615 --> 01:00:41,595
with drafting advanced care directives.
999
01:00:41,955 --> 01:00:43,995
The documents are available online.
1000
01:00:44,610 --> 01:00:46,290
Through the state trustees and elsewhere.
1001
01:00:46,620 --> 01:00:46,740
Yeah.
1002
01:00:46,740 --> 01:00:46,860
For
1003
01:00:46,860 --> 01:00:50,490
people to fill them out or take
them to their GP and fill 'em out.
1004
01:00:50,490 --> 01:00:54,480
Often gps will have them, especially if
they deal with a lot of older people.
1005
01:00:54,810 --> 01:00:58,530
And as I said, I'd encourage everybody
to get advance care directive in
1006
01:00:58,530 --> 01:01:03,570
place because it really does, as you
say, often in very difficult to an
1007
01:01:03,570 --> 01:01:09,720
emergency situations, clarifies a lot
of things and allows you to make it
1008
01:01:09,750 --> 01:01:13,980
clear about what kind of treatments
or lack of treatment that you wanna
1009
01:01:13,980 --> 01:01:16,320
receive in certain circumstances.
1010
01:01:16,890 --> 01:01:20,700
The one thing I would also add that
I think is a very good thing that I
1011
01:01:20,700 --> 01:01:24,240
would hope if there's gonna be changes
in relation to powers of attorney
1012
01:01:24,240 --> 01:01:28,560
are also included is, and it's often
something that doesn't get talked about
1013
01:01:28,560 --> 01:01:31,740
enough, is the support person role.
1014
01:01:32,700 --> 01:01:35,280
That can be appointed as part
of the advanced care directive.
1015
01:01:36,090 --> 01:01:40,440
It essentially allows someone not to
make decisions, but to support someone in
1016
01:01:40,440 --> 01:01:44,460
making their own decisions, which allows
them legal access to medical records,
1017
01:01:44,759 --> 01:01:48,840
to attend certain medical appointments
to discuss their medical issues with
1018
01:01:49,230 --> 01:01:50,640
medical treatment practitioners.
1019
01:01:50,640 --> 01:01:56,070
This, I think, is a really good
innovation because one, it recognizes
1020
01:01:56,070 --> 01:01:58,440
that capacity is not an on and off switch.
1021
01:01:58,710 --> 01:02:00,030
Capacity is a spectrum.
1022
01:02:00,030 --> 01:02:02,280
Again, it fluctuates changes.
1023
01:02:02,670 --> 01:02:06,540
You can have a situation where someone
is very cogent and therefore is able
1024
01:02:06,540 --> 01:02:10,980
to make kind of engage very well,
but sometimes they have bad days.
1025
01:02:11,220 --> 01:02:14,730
The support person is able to support
them for as long as possible in making
1026
01:02:14,730 --> 01:02:19,710
their own decisions, and rather than
just as soon as someone is determined
1027
01:02:19,710 --> 01:02:24,600
as not having capacity, or it's a
question of their capacity, that they're
1028
01:02:24,600 --> 01:02:26,400
no longer engaged in the process.
1029
01:02:26,400 --> 01:02:29,790
It allows for people to support
people to make their own decisions.
1030
01:02:30,060 --> 01:02:36,390
But also have the legal right to access
things like medical records or to overcome
1031
01:02:36,390 --> 01:02:40,440
the kind of privacy requirements of
engaging with medical practitioners.
1032
01:02:41,250 --> 01:02:42,090
Those things.
1033
01:02:42,420 --> 01:02:45,960
I think it would be very useful to see
that in relation to hours of attorney
1034
01:02:45,960 --> 01:02:49,805
more generally, so that people support
people in making financial decisions.
1035
01:02:49,810 --> 01:02:52,770
So talk to their mortgage
broker, their bank on their
1036
01:02:52,770 --> 01:02:54,750
behalf, those kind of things.
1037
01:02:54,810 --> 01:02:58,380
Engage with solicitors and support
'em, engaging with solicitors or
1038
01:02:58,380 --> 01:02:59,820
commanders or whatever it might be.
1039
01:03:00,120 --> 01:03:04,325
And so that similarly, how a
support person can engage with our
1040
01:03:04,330 --> 01:03:07,350
medical practitioners in supporting
someone making their own decisions.
1041
01:03:08,460 --> 01:03:10,950
Because it really is challenging
to navigate all of this.
1042
01:03:11,040 --> 01:03:14,549
Uh, you know, when I went through
it, you know, my father used
1043
01:03:14,549 --> 01:03:18,180
to work in the courts, so I've
always had a will, you know?
1044
01:03:18,185 --> 01:03:18,375
Mm-hmm.
1045
01:03:18,455 --> 01:03:23,549
So for me, I had a pretty high level
of literacy when it comes to both my
1046
01:03:23,549 --> 01:03:25,799
own health and also the legal system.
1047
01:03:26,310 --> 01:03:28,920
But I found it really
challenging to navigate.
1048
01:03:29,250 --> 01:03:29,549
It's very, yes.
1049
01:03:30,240 --> 01:03:30,420
Yep.
1050
01:03:30,509 --> 01:03:34,470
So to be able to have a support person
and, and the fact that we are not taught
1051
01:03:34,470 --> 01:03:38,490
it at school just does my head in, you
know, like, this is something we all
1052
01:03:38,490 --> 01:03:44,220
need to be aware of because it, it comes
back to knowing our rights and how we can
1053
01:03:44,220 --> 01:03:46,589
actually make sure that we're protected.
1054
01:03:47,310 --> 01:03:47,640
Yes.
1055
01:03:47,640 --> 01:03:52,950
The, I would say that taking the time
to go through the process of developing
1056
01:03:53,520 --> 01:03:57,420
a plan in relation to these three
kind of pillars of estate planning.
1057
01:03:58,154 --> 01:04:02,444
Is actually a means by which you can
protect your, to kind of go back to what
1058
01:04:02,444 --> 01:04:06,884
we began this discussion in relation
to elder abuse, the process of going
1059
01:04:06,884 --> 01:04:13,785
through and engaging with doctors,
lawyers, community members, discussing
1060
01:04:13,785 --> 01:04:17,910
these issues with people in your
community, going through the planning
1061
01:04:17,910 --> 01:04:23,805
process, it's actually a really good
means to protect yourself from being
1062
01:04:23,835 --> 01:04:29,295
controlled or coerced because you can
kind of point to those documents and
1063
01:04:29,295 --> 01:04:31,634
say, well, that's, that's all sorted.
1064
01:04:32,085 --> 01:04:33,645
You know, I don't need to do that.
1065
01:04:33,705 --> 01:04:39,015
And also having people aware of the
decisions that you've made means
1066
01:04:39,015 --> 01:04:42,225
that they're not gonna be kind
of, they're gonna be aware that
1067
01:04:42,225 --> 01:04:43,845
if there's any traumatic changes.
1068
01:04:44,235 --> 01:04:46,605
In relation to your situation.
1069
01:04:46,605 --> 01:04:51,975
So if someone starts coming in and
declaring that you are doing X, Y, and
1070
01:04:51,975 --> 01:04:56,265
Z, but you know that they're not the
power of attorney, or they're not the
1071
01:04:56,265 --> 01:05:00,645
executor, or they're not, they shouldn't
be involved in this, then that's
1072
01:05:00,705 --> 01:05:02,895
puts in, it raises those red flags.
1073
01:05:02,895 --> 01:05:06,795
So, as I said, this process I
would encourage everybody to
1074
01:05:06,795 --> 01:05:09,105
do at a relatively young age.
1075
01:05:09,165 --> 01:05:13,305
You know, really this is something that
people should be, as you say, taught
1076
01:05:13,305 --> 01:05:18,345
from a relatively young age as part
of the kind of things that everyone
1077
01:05:18,345 --> 01:05:24,165
should potentially do, and especially
once they reach a certain age or have a
1078
01:05:24,165 --> 01:05:26,295
certain degree of property in particular.
1079
01:05:26,685 --> 01:05:30,165
But in particular with the advanced care
directive, it's really something that I
1080
01:05:30,165 --> 01:05:36,345
think, you know, bit like when you visit
a new gp, you've gotta fill out like a
1081
01:05:36,345 --> 01:05:39,225
background medical information sheet.
1082
01:05:39,960 --> 01:05:44,280
Part of that process I would
suggest is that there's a suggestion
1083
01:05:44,280 --> 01:05:48,600
that you create an advance care
directive whenever you engage, and
1084
01:05:48,660 --> 01:05:51,570
potentially a similar, when engaging.
1085
01:05:51,810 --> 01:05:55,770
If the situation in relation to powers
of attorney were a little less fraught,
1086
01:05:56,310 --> 01:06:00,060
then you could have a similar situation
with powers of fraternity and solicitors.
1087
01:06:00,480 --> 01:06:04,800
So, as I said, in a lot of ways the,
that's the kind of three pillars, and they
1088
01:06:04,800 --> 01:06:10,920
are very important if you want to make a
clear plan and protect yourself and your
1089
01:06:10,920 --> 01:06:15,445
family in relation to when you become,
get closer to the end of your life.
1090
01:06:16,334 --> 01:06:21,825
And in relation to the advance care
directive, I was fortunate enough to
1091
01:06:21,825 --> 01:06:25,064
attend a symposium last year in Adelaide.
1092
01:06:25,125 --> 01:06:29,325
It was run by Advanced Care Planning
Australia, and we have links to
1093
01:06:29,325 --> 01:06:31,995
them on the website and we'll
include them in the show notes.
1094
01:06:32,294 --> 01:06:35,595
They run regular workshops
throughout the year in various
1095
01:06:35,595 --> 01:06:37,095
locations across Australia.
1096
01:06:37,334 --> 01:06:41,325
Also palliative care, whether
it be Australia or your
1097
01:06:41,354 --> 01:06:43,785
local state organization.
1098
01:06:43,785 --> 01:06:48,495
They also run programs in advanced
care planning on a regular basis.
1099
01:06:48,495 --> 01:06:51,615
So we'll definitely include
that because I know.
1100
01:06:52,160 --> 01:06:56,720
That the detail that you go into
is really important, both from, you
1101
01:06:56,720 --> 01:07:00,320
know, a daughter who's had her mother
go through the process, through my
1102
01:07:00,320 --> 01:07:02,570
own experience with my car accident.
1103
01:07:02,810 --> 01:07:06,560
And then also my best friend
is an emergency doctor, and
1104
01:07:06,560 --> 01:07:09,260
so she, she sees, uh mm-hmm.
1105
01:07:09,260 --> 01:07:14,270
The need and, and how important those
forms are when something bad does happen
1106
01:07:14,270 --> 01:07:16,730
and you end up in an emergency department.
1107
01:07:16,790 --> 01:07:17,330
Exactly.
1108
01:07:17,570 --> 01:07:21,350
So, yeah, they've, they're very,
very important documents to do.
1109
01:07:21,440 --> 01:07:25,190
Is there anything else that you
think that we should talk about
1110
01:07:25,760 --> 01:07:30,080
in relation to protecting your
rights and how you can do that?
1111
01:07:30,620 --> 01:07:35,540
Maybe the one area that we haven't touched
on Will is perhaps the importance of
1112
01:07:35,540 --> 01:07:37,700
these documents in relation to business.
1113
01:07:37,700 --> 01:07:41,480
And because I just always feel
that that's such a, an added
1114
01:07:41,480 --> 01:07:43,490
layer on top of things as well.
1115
01:07:43,520 --> 01:07:43,610
Mm-hmm.
1116
01:07:43,616 --> 01:07:45,710
Because you have a, a larger duty of care.
1117
01:07:46,070 --> 01:07:49,460
So it really amplifies the importance
of these documents, doesn't it?
1118
01:07:50,040 --> 01:07:53,850
Well, this is where we get really into the
weeds of things in relation to, we don't,
1119
01:07:53,850 --> 01:07:54,899
let's not get too weedy.
1120
01:07:55,259 --> 01:07:59,790
We won't get too weedy in relation to
the ownership of businesses, especially
1121
01:07:59,790 --> 01:08:02,160
when we are talking private businesses.
1122
01:08:02,160 --> 01:08:05,879
So private corporations, not public
ones, public ones, we'll leave that.
1123
01:08:05,879 --> 01:08:06,959
That's very weedy.
1124
01:08:07,259 --> 01:08:08,279
Getting into the jungle.
1125
01:08:08,279 --> 01:08:10,470
That's getting the jungle
if we're going there.
1126
01:08:10,980 --> 01:08:15,149
But in terms of private companies and
businesses, it is very complicated.
1127
01:08:15,240 --> 01:08:20,639
And I would encourage, I would
often encourage people to try
1128
01:08:20,639 --> 01:08:24,269
and manage the transition.
1129
01:08:25,080 --> 01:08:30,149
A transition or a, a plan in relation to
transition in relation to the ownership
1130
01:08:30,149 --> 01:08:34,109
of their business and the selling of their
business well before they're in a position
1131
01:08:34,469 --> 01:08:39,689
where it's gotta be dealt with via a
will or dealt with via power of attorney.
1132
01:08:40,200 --> 01:08:45,120
Now, that's not always
possible, but kind of planning.
1133
01:08:45,585 --> 01:08:50,745
The next steps in relation to a business
is part of managing a business Well,
1134
01:08:51,165 --> 01:08:56,235
and they're absolutely, you know, can
be really difficult, especially if
1135
01:08:56,235 --> 01:09:00,705
a family member who's an executive's
gotta step in to a business they have
1136
01:09:00,705 --> 01:09:07,095
no idea about and try and manage either
the sale or the continued running of,
1137
01:09:07,695 --> 01:09:11,085
or family members being bequeathed
the business they have no idea about.
1138
01:09:11,565 --> 01:09:15,285
And so it can be really difficult,
you know, because there's so many
1139
01:09:15,285 --> 01:09:19,185
different moving parts in relation
to business suppliers, employees,
1140
01:09:19,605 --> 01:09:21,195
um, all those different things.
1141
01:09:21,495 --> 01:09:23,100
Debts, liabilities, wages,
1142
01:09:23,595 --> 01:09:26,475
wages, still needing to
be paid on a weekly basis.
1143
01:09:26,475 --> 01:09:26,895
Exactly.
1144
01:09:26,895 --> 01:09:27,100
You know,
1145
01:09:27,320 --> 01:09:27,980
all these things.
1146
01:09:28,250 --> 01:09:28,540
Yeah.
1147
01:09:28,680 --> 01:09:33,525
So that's why I say, if at all
possible, for anybody who does
1148
01:09:33,525 --> 01:09:35,025
own a business or runs a business.
1149
01:09:35,355 --> 01:09:40,395
Have those, it's got a name where
you kind of have a plan for the
1150
01:09:40,395 --> 01:09:44,835
eventuality that you will no longer
be available to succession plans.
1151
01:09:44,835 --> 01:09:44,985
I think
1152
01:09:45,795 --> 01:09:47,625
there's a couple of, yeah, so there's
a couple of terms that they can use.
1153
01:09:47,625 --> 01:09:47,685
Yeah.
1154
01:09:47,685 --> 01:09:53,145
When I used to work at the Royal
Botanic Gardens, they referred to it
1155
01:09:53,235 --> 01:09:57,735
like if any incident happened, like
so if the power went out or you know,
1156
01:09:57,945 --> 01:10:01,515
it was just part of the business
continuity plan, so it would, yep.
1157
01:10:01,515 --> 01:10:01,695
Business
1158
01:10:01,695 --> 01:10:02,385
continuity,
1159
01:10:02,745 --> 01:10:05,595
succession planning, fall under
succession planning if it has
1160
01:10:05,595 --> 01:10:07,335
to actually transition hands.
1161
01:10:07,340 --> 01:10:07,920
Yeah, exactly.
1162
01:10:08,020 --> 01:10:12,765
Um, yeah, and Business Victoria and
also I think Small Business Australia
1163
01:10:12,765 --> 01:10:15,825
and, and all of those sort of
government business organizations and
1164
01:10:15,825 --> 01:10:16,960
we website resources for that website.
1165
01:10:16,965 --> 01:10:18,645
Really good templates for it too.
1166
01:10:18,795 --> 01:10:19,035
Yeah.
1167
01:10:19,035 --> 01:10:19,036
Yeah.
1168
01:10:19,275 --> 01:10:23,985
And so that's something that people should
take the time when doing their general
1169
01:10:23,985 --> 01:10:26,055
planning in relation to their business.
1170
01:10:26,325 --> 01:10:27,315
They should include.
1171
01:10:27,705 --> 01:10:32,955
Planning in relation to successional
continuity planning and the idea being
1172
01:10:32,955 --> 01:10:38,175
that if something were to happen that the
business is able to continue because it is
1173
01:10:38,175 --> 01:10:43,724
a separate entity on the person that owns
it and it will as separate legal entity.
1174
01:10:43,724 --> 01:10:48,195
It will continue, it will continue to have
its liabilities and responsibilities, but
1175
01:10:48,224 --> 01:10:53,625
as I said, so in order for the business
not to fail upon someone's passing or
1176
01:10:53,625 --> 01:10:57,375
some kind of accident where they lose
capacity, it is really important to
1177
01:10:57,375 --> 01:11:01,485
have those continuity plans in place
and those succession plans in place.
1178
01:11:02,415 --> 01:11:06,134
Perhaps the last thing I'll say in terms
of will making an estate planning estate,
1179
01:11:06,554 --> 01:11:08,445
so I don't, I don't forget to include it.
1180
01:11:08,894 --> 01:11:13,634
I mentioned earlier about the perspective
that I bring in relation to having
1181
01:11:13,634 --> 01:11:18,795
a family violence background and the
kind of, I guess a risk mitigation and
1182
01:11:18,795 --> 01:11:23,175
conflict management background is that.
1183
01:11:23,639 --> 01:11:27,809
You should always turn your mind to
beyond a lot of these technical questions,
1184
01:11:28,590 --> 01:11:32,759
and this goes broadly across all three
of those pillars and even included in
1185
01:11:32,759 --> 01:11:39,300
business, is to turn your mind to risk
mitigation and conflict mitigation
1186
01:11:39,990 --> 01:11:43,230
when developing your estate planning.
1187
01:11:43,830 --> 01:11:44,730
What do I mean by that?
1188
01:11:44,940 --> 01:11:54,809
The amount of families that irrevocably
break apart upon, particularly the
1189
01:11:54,809 --> 01:12:00,780
passing of a parent or a patriarch or
matriarch of a family is significant.
1190
01:12:02,160 --> 01:12:07,620
And so I would say to those patriarchs
and matriarchs and anyone in between
1191
01:12:08,040 --> 01:12:17,070
that they take the time to consider the
existing tensions and complex within
1192
01:12:17,070 --> 01:12:22,950
their families or their beneficiaries
when developing their plans.
1193
01:12:23,700 --> 01:12:26,040
It goes back to what I was
mentioning about the executors.
1194
01:12:26,459 --> 01:12:30,959
If you have two executors that hate
each other, can't agree on anything,
1195
01:12:30,990 --> 01:12:35,759
don't appoint them both as executives,
if you know that there's a brewing
1196
01:12:35,759 --> 01:12:40,200
conflict about a particular property,
make it clear to both parties about
1197
01:12:40,200 --> 01:12:44,129
what you are wanting to do in relation
to that property and make it clear in
1198
01:12:44,129 --> 01:12:45,959
the will in relation to that property.
1199
01:12:46,410 --> 01:12:50,190
It's impossible to fully prevent
conflict in these circumstances.
1200
01:12:50,490 --> 01:12:54,150
'cause often the conflict is not
necessarily just about the property.
1201
01:12:54,690 --> 01:12:58,769
It's often, you know, wrapped up in
emotional and psychological issues.
1202
01:12:59,309 --> 01:13:05,280
But if you can very easily exacerbate
conflict by poor estate planning,
1203
01:13:05,370 --> 01:13:09,690
that hasn't taken into account these
considerations when you've been
1204
01:13:09,690 --> 01:13:11,580
developing these legal documents.
1205
01:13:12,450 --> 01:13:17,339
So taking the time to both communicate
about and consider the existing
1206
01:13:17,429 --> 01:13:21,179
tensions within your family and the
potential conflicts that could arise.
1207
01:13:21,660 --> 01:13:22,830
Is really important.
1208
01:13:23,010 --> 01:13:27,270
It's not something that people talk about
often in relation to estate planning.
1209
01:13:27,630 --> 01:13:33,660
I think it's a critical thing that
because no one wants their legacy, the
1210
01:13:33,660 --> 01:13:39,780
last thing they leave to their family and
friends to cause significant conflict.
1211
01:13:39,780 --> 01:13:40,665
Well, most people don't.
1212
01:13:40,695 --> 01:13:41,505
Some people do.
1213
01:13:41,575 --> 01:13:45,000
Some people wanna see the world burn,
but as I said, the majority of people
1214
01:13:45,420 --> 01:13:50,970
don't want their legacy to be one of
conflict and would hate to think that
1215
01:13:51,240 --> 01:13:55,500
because they didn't take the time to
consider those things when developing
1216
01:13:55,500 --> 01:14:01,530
their estate plan has led to a fracture
within their family to whom they're
1217
01:14:01,530 --> 01:14:07,140
bequeathing these property in order for
them to benefit from, and the hope being
1218
01:14:07,140 --> 01:14:11,850
that they'll live more financially or
securely or fulfilled lives after that.
1219
01:14:11,910 --> 01:14:12,300
So.
1220
01:14:12,690 --> 01:14:16,110
Taking that time I think is really
important and it's the one thing I,
1221
01:14:16,470 --> 01:14:21,285
if anybody takes away anything from
listening to me lather on for, for
1222
01:14:21,600 --> 01:14:27,000
this time is that, that they should
turn their mind to those, those issues,
1223
01:14:27,300 --> 01:14:31,590
not just the kind of technical legal
issues that we've touched on today.
1224
01:14:32,280 --> 01:14:35,700
I think that is a perfect
place for us to finish.
1225
01:14:35,700 --> 01:14:40,980
Will I totally agree with you and I think
that, you know what's become very clear
1226
01:14:40,980 --> 01:14:45,900
as well in the documents are important
to make sure that we get them right
1227
01:14:45,900 --> 01:14:51,300
because they represent us and our wishes
and our values, but it's also having the
1228
01:14:51,300 --> 01:14:55,680
conversations surrounding those documents
that are really, really important.
1229
01:14:56,040 --> 01:14:58,950
It goes back to what we're talking
about in relation to community,
1230
01:14:59,490 --> 01:15:03,270
that your community should be aware
of your wishes, even if they don't
1231
01:15:03,270 --> 01:15:04,950
necessarily have a copy of the document.
1232
01:15:04,950 --> 01:15:08,925
So can be uncomfortable, talk
about these things with the
1233
01:15:09,005 --> 01:15:11,160
family and friends and so that.
1234
01:15:12,360 --> 01:15:15,960
Your community's aware of what your
wishes are and they can help support
1235
01:15:16,230 --> 01:15:17,820
making sure that those wishes happen.
1236
01:15:18,660 --> 01:15:20,640
Thank you so much for
being with us today, will
1237
01:15:20,880 --> 01:15:21,660
Absolute pleasure.
1238
01:15:24,600 --> 01:15:28,020
We hope you enjoyed today's
episode of Don't Be Caught Dead,
1239
01:15:28,350 --> 01:15:30,030
brought to you by Critical Info.
1240
01:15:30,030 --> 01:15:35,100
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1241
01:15:35,100 --> 01:15:37,050
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1242
01:15:37,170 --> 01:15:40,800
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1243
01:15:40,800 --> 01:15:42,540
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01:15:42,720 --> 01:15:46,860
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1245
01:15:46,860 --> 01:15:48,600
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1246
01:15:48,900 --> 01:15:50,220
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1247
01:15:50,370 --> 01:15:51,390
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1248
01:15:51,390 --> 01:15:55,290
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1249
01:15:55,290 --> 01:16:01,500
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