Community education

8.92     Recommendation 8–1 considers the role of lawyers in advance planning documents. Chapter 3 discusses matters that a National Plan to combat elder abuse might address, and community education is clearly an important strategy of such a plan. This strategy should include information about the importance of seeking appropriate information and professional advice in relation to advance planning documents.

8.93     In that context, the problem of homemade, ‘do-it-yourself’ (DIY) documents can be targeted. ‘Home made wills are a curse’, said Master Sanderson in the Western Australian case, Gray v Gray, which involved a will dispute.[128] Although the case involved the construction of the will and not a matter of alleged elder abuse, the remarks are apposite to the problems that may arise in the DIY context and the frustration of a person’s intended estate plans as a result:

Occasionally where the assets of a testator are limited and where the beneficiaries are not in dispute no difficulties may arise in the administration of an estate. Flaws in the will can be glossed over and the interests of all parties can be reconciled. But where, as here, the estate of the deceased is substantial, the will is opaque and there is no agreement among the beneficiaries, the inevitable result is an expensive legal battle which is unlikely to satisfy everyone. All of this could have been avoided if the testator had consulted a lawyer and signed off on a will which reflected his wishes. There is no question but that engaging the services of a properly qualified and experienced lawyer to draft a will is money well spent.[129]

8.94     The problems that can arise from ‘inadequate templates such as “Will Kits” which can be purchased from local post offices’ was also referred to by Hamilton Blackstone Lawyers. This firm said that reforms should focus on ‘education, advocacy and awareness on the importance of proper estate planning and the preparation of enduring documents’:

The timing for proper education, advocacy and awareness is no more pertinent than it is today. As family dynamics change, a proper will becomes even more critical. Breakdowns in family relationships now occur at a far greater rate than at any time in Australian history. Blended family arrangements are now common. Grandparents and relatives are now more likely than ever to have the full-time care of children, and more people are raising children who aren’t biologically related to them. With the growth in superannuation balances and increasing property values, estates are becoming larger and larger, which means tax and social security become even more relevant post-death.

We strongly encourage the ongoing development of education, advocacy and awareness programs, led by the Law Societies in each state and territory, to highlight the importance of proper estate planning in consultation with specialists in these critical areas.[130]

8.95     Community education and awareness could also include a focus on encouraging women to make wills:

Unfortunately, women are disadvantaged when it comes to many of the key social and financial indicators which particularly impact their estate planning, which means that proper estate planning becomes particularly critical. The statistics tell us that women endure a disproportionate share of the financial burden of their families, whether because of increased life expectancy, care of elderly relatives, and/or care and custody of children. However, women are also disproportionately subject to financial abuse, domestic violence, and divorce can be financially crippling to them when they also have to manage the financial burden of children and the elderly.[131]

8.96     The ACT Law Society and the Law Institute of Victoria have produced guidelines on wills directed to the general public.[132] Such initiatives provide an instructive example of community education. The Hume River Community Legal Service (HRCLS) also provided an example of a specific community education strategy to make older persons less vulnerable to financial abuse. They cited wills workshops conducted especially for Aboriginal clients:

Over a two day period in the years 2015 and 2016, Gilbert and Tobin (a private law firm) assisted HRCLS on a pro bono basis with the running of a free Wills, Power of Attorney and Guardianship workshop for Aboriginal people in the Albury Wodonga region. On Day 1, Gilbert and Tobin provided education about legal planning and focused on issues particularly relevant to Aboriginal people. In the afternoon of Day 1, lawyers began taking instructions from people attending the workshop. On Day 2, lawyers drafted wills and power of attorney documents, and returned the completed documents for clients to sign and take home. The workshop in 2015 was held at Albury Wodonga Aboriginal Health Service and the workshop in 2016 was held at the Mungabareena Aboriginal Corporation in Wodonga.

This initiative was taken to address the low numbers of Aboriginal people who have wills or power of attorney documents. By delivering a workshop in partnership with the local Aboriginal Health Service, the workshop was culturally appropriate and also well promoted within the local Aboriginal community. As a result of having wills and power of attorney documents in place, elderly people are less likely to be exposed to elder abuse.[133]

8.97     Other examples of community education include the campaign of the New South Wales Government, ‘get it in black and white’, explaining ‘Planning Ahead Tools’ as an exercise of a person’s rights: ‘When you have planning ahead documents in place—a Will, Power of Attorney and Enduring Guardianship—you can rest assured that your rights and wishes can be respected because they are properly documented’.[134] Another example is a guide for making enduring powers of attorney, produced by the Office of the Public Advocate of Victoria, entitled ‘Take Control’.[135] Such strategies could be complemented by those emphasising the importance of careful estate planning and the assistance that professionals—particularly lawyers and financial advisers—can provide. For example, the Law Society of New South Wales includes community information on its website on making a will, with an opening section on ‘The truth of homemade wills’ and their inherent dangers.[136] The ACT Law Society’s community education guide on making a will includes a similar message, under the heading ‘How can a solicitor help me?’[137]

8.98     The ALRC recognises that not all older persons will have access to lawyers and other professionals and acknowledges that some may find access to free will making and accompanying advice the only way to gain such support. In the absence of direct access to lawyers in this way, the provision of clear and informative advice provided through law society websites for example is a significant safeguarding step.

8.99     The ALRC commends such initiatives as supportive of older persons in exercising their rights. They provide illustrations of best practice approaches that can inform the education and awareness strategies developed through the National Plan. Community education may also address broader issues about people’s rights in relation to will making in Australia.