But as we age, we are more likely to require care towards the end of our lives. Some of this care is provided by voluntary caregivers and friends & family, in addition to paid carers. Sometimes we want to provide for those caregivers or friends in our Will. Such bequests however can be suspected, resented and possibly challenged by family members and other beneficiaries after we die.
Imagine an elderly man changes his Will three months before he dies to leave all of his assets to an individual who had recently befriended him and “taken care of him” in recent times. To many people the word “gold-digger” might spring to mind.
As people age, their mental abilities age as well. Their judgment, wisdom and discernment in making decisions may no longer be as acute, and they may be more willing to trust strangers.
Sadly, some people take advantage of such elderly people, causing them to sign over assets and benefits or even whole estates to people they hardly know.
How can you be sure your loved one is not pressured into changing the beneficiaries to their Will? How will you even know if they have changed their Will recently? How do you prove whether their decision was the product of fraud, menace, duress, or undue influence?
Guardianships and Protection Orders might be the answer for some families.
This is where the Court or Tribunal (such as the Guardianship Board) declares an individual unable to take care of their own legal and financial matters and appoints another individual, known as a Manager or Guardian, to do so. If your loved one is unable to make sound decisions, then appointing a trustworthy person to do so can guard against scam and fraud. Often an Order is made preventing the protected person from being able to create any further Will or testamentary disposition unless the manager or guardian approves.
A guardianship is a drastic step that should always be a last resort, and there are significant risks associated with this type of application. Courts and tribunals will generally NOT grant guardianships in the absence of solid proof of a person’s inability to care for themselves. There is a starting presumption in favour of a finding that an individual retains capacity to handle their own affairs, that can only be rebutted by strong evidence.
Medical evidence from treating and other health professionals will almost always be required to assess the testamentary capacity of the person concerned.
Many people would naturally resent the implication that they have “lost the plot”, and such a suggestion can have the effect of estranging you from the very person you wish to protect. If your request for a guardianship is denied, you can pretty much count on being removed from the life of the proposed object of your concern.
Elderly people in particular are frequently fearful of losing control in their own lives, and will fight vehemently to maintain their independence, mobility, freedom, dignity and quality of life. They may react very badly to any attempt to interfere with their wishes.
Further, your own motives in bringing a Guardianship application will be examined. You may be genuine in your concern for your loved one. However, if you also stand to gain or lose financially depending upon the outcome, then the Court will be entitled to regard you as less-than-independent.
There is a distinction between lack of capacity on one hand, and undue influence on the other. Your loved one may in fact be of sound mind, and yet influenced by another person. You might not like the fact that your elderly father has a new (much younger) girlfriend. However your dislike might be seen by the Court as self-interested and irrelevant to the legal issues.
All these estate planning issues are common to the “Blended Family”, as well as to the “Ageing Loved-One”. Be careful! Take specialist legal advice before acting.
Rod Genders is a senior Australian lawyer specialising in accident compensation and estate planning in Adelaide. His boutique specialist law firm is one of the oldest and most respected in Australia – visit it at www.genders.com.au . Rod is also a prolific author and speaker. Some of his articles and books on Wills, Probate, Trusts, Estate Planning, Asset Protection and Retirement Planning may be found at www.genders.com.au/adelaide-lawyer-blog.
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