The role of the lawyer

Lawyers and advance planning documents

8.62     Stakeholders were broadly supportive of ensuring that lawyers understood the legal issues as well as their responsibilities to their clients in the context of the preparation of advance planning documents. A number pointed to the excellent guidelines that are available in some jurisdictions. While recognising that there are good examples, there is room for a more integrated response, identifying best practice nationally.

8.63     However it was also pointed out that lawyers may not be involved in the preparation of documents and that improving the understanding of solicitors did not address the problem of, for example, ‘do-it-yourself’ wills and other documents. Recommendation 8–1 focuses on the role of the lawyer. Consideration of the importance of community education in addressing the difficulties associated with ‘do-it-yourself’ wills is also considered.

Guidelines for legal practitioners

8.64     Recommendation 8–1 identifies topics that best practice guidelines should cover. Paragraphs (a) and (b) are matters of general understanding about the dynamics of elder abuse and about family relationships in relation to property and how they may be manifested as improper or undue influence in the context of advance planning documents. Paragraph (c) reinforces the lawyer’s role in supporting the client’s autonomy and to ensure that the person’s wishes are obtained personally and separately from anyone else. Paragraph (d) concerns best practice approaches to ensure that the client’s wishes are recorded fully so that any later challenge can be reviewed in the full context of the client’s instructions. Paragraph (e) concerns the specific elements required to be established for testamentary capacity, should a will be challenged on the basis of a lack of capacity.^[83] Capacity questions may affect other transactions and lawyers need to understand the legal tests that apply and support a client in circumstances where capacity issues may be raised.^[84]

8.65     The guidelines in Recommendation 8–1 are similar to ones recommended by the VLRC in its report, Succession Laws, in 2013. They are designed to reduce the risk of undue influence.^[85]

8.66     A number of state law societies have prepared or endorsed guidelines on a range of topics included in Recommendation 8–1, particularly relating to legal capacity: as in Victoria;^[86] New South Wales;^[87] Queensland;^[88] and South Australia.^[89] Professors Carmelle Peisah and Nick O’Neill observed that ‘[o]ne of the most fundamental tasks of solicitors is to take instructions from their clients’, adding that ‘[n]evertheless, clients must have the capacity to give those instructions’.^[90]

8.67     The South Australian guidelines include, for example, a section on ‘Taking Instructions’ that is expressed in terms of ‘Exploring and Enhancing Client Autonomy’, which emphasise that

client difficulty in communication does not abrogate the lawyer’s obligation diligently to seek a client’s instruction, and may positively require the lawyer to take further action to ensure effective client communication.^[91]

8.68     The guide endorsed by the Queensland Law Society similarly includes advice on taking instructions in terms of ‘What can I do to maximise my client’s capacity?’.^[92] The use of support persons and interpreters is a matter expressly commented upon in this context, but with an emphasis on ‘extreme caution’ and with the client’s consent for any third party involvement.^[93] However, there is danger inherent in any situation where instructions are obtained and someone else is involved, even if by way of support, especially if this involves interpreting, where that person is a family member.

8.69     The South Australian guide includes reference to enhancing communication through interpreters and other supporters, but with similar cautions about third party assistance:

Having as much information to assist in advising a client is always the preferred position of lawyers.

However, seeking information from apparently helpful, well meaning or ‘innocuous sources’ close to the client is an invasive step and contrary to professional duties if it should occur without the consent of the client.

Although most people are well intentioned, a person’s familiarity with the client’s lifestyle and with the role of giving practical assistance, can sometimes lead to their overstepping the boundaries of sought after assistance.

Do not assume the client’s carer or support person knows that the client has sought the lawyer’s advice and assistance.

Do not assume that presence of others will be welcomed or make a client comfortable. Sometimes it may have the reverse effect and may increase anxiety.

Even where not sought out, family or others may raise issues of lack of client capacity with the lawyer. Where this occurs, the lawyer should raise the matter with the client and explore the extent to which the client concurs with the concern. The client may instruct the lawyer to explore the matter further. Importantly, the lawyer should test the ‘supposition’ with other information known and shared with them.^[94]

8.70     The VLRC acknowledged the availability of such resources for legal practitioners on assessing legal capacity when this was in doubt, but recommended that more was needed. To minimise the risk of undue influence, the VLRC recommended that the Law Institute of Victoria, as the professional body of Victorian legal practitioners, should prepare best practice guidelines ‘on the detection and prevention of undue influence when preparing a will’.^[95] The VLRC also said that the guidelines could draw from existing guides and resources that document best practice when taking instructions for a will.^[96]

8.71     Stakeholders in the VLRC inquiry suggested a range of matters that guidelines on undue influence should contain:

•           the importance of taking instructions from the will-maker alone

•           common characteristics of how a person subject to undue influence may present

•           common warning signs of undue influence, for example a sudden change in beneficiary from close family member to recent acquaintance

•           the role of interpreters who accompany the will-maker

•           the importance of making enquiries about previous wills, and possibly obtaining previous wills

•           the need to take and retain detailed file notes in the event that a will is challenged.^[97]

8.72     In this ALRC Inquiry stakeholders emphasised similar points, noting available guidelines and making suggestions as to matters that should be included in a coordinated national approach as included in Recommendation 8–1. The Law Council of Australia also suggested that consistency in succession legislation and advance care planning frameworks would assist in developing national guidelines.^[98]

8.73     The Australian Research Network on Law and Ageing, for example, suggested that guidelines should stress ‘the importance of asking open-ended questions’ to ensure that the person understands the nature of the document and knows and approves of its contents. An example of poor practice was given ‘of lawyers explaining or reading the content of a Will and then following up with the closed question “do you understand?”’^[99]

8.74     The Eastern Community Legal Centre and the Eastern Elder Abuse Network recommended that the guidelines ‘include information on obtaining medical assessments of capacity where the legal practitioner is alerted to any doubts around testamentary capacity’.^[100] Another said that such a strategy could be used to support a client and head off a later challenge:

In addition the question of the mental competence of the person at the time should be clearly established to prevent the Will being challenged later, on the alleged basis of mental impairment at the time.^[101]

8.75     The importance of using interpreters was emphasised by the Federation of Ethnic Communities Councils of Australia. They also reiterated that ‘the use of family members and friends as “interpreters” is not supported by policy in Australia’.^[102]

The person making a will, codicil, powers of attorney or any form of transfer of property or vesting of rights, must clearly understand the content of the instrument they are required to sign. Most of these documents use technical jargon that the person making a will may not be familiar with. Thus, the respective professionals who are involved in drafting these documents must ensure that the individuals understand the content of the document and facilitate meeting the translation or interpreting needs of older people from CALD backgrounds.^[103]

8.76     The Financial Planning Association of Australia (FPA) urged that the guidelines need to ensure that legal practitioners ‘have the relevant education, training and experience to provide estate planning advice’. The FPA also expressed concern that ‘inappropriate estate planning advice has been provided to clients by generalist lawyers who have not had the requisite training or experience’. At a minimum, FPA urged, ‘estate planning training should be promoted via continued professional development’.^[104]

A national approach

8.77     Recommendation 8–1 advocates a national approach and affirms the important role that law societies and the Law Council, can play in assisting lawyers. Seniors Rights Victoria pointed to the important role of the National Elder Law Committee of the Law Council of Australia currently plays in identifying critical issues relating to elder abuse. These include: legal capacity; undue influence; entering into guarantees and reverse mortgages in the interests of others; and misuse of influence by carers.^[105]

8.78     The Institute of Legal Executives (Victoria) pointed out that legal practitioners in that state had a ‘plethora of information sources’. However, with ‘the best will in the world’,

it is difficult to be completely ‘across’ all of these matters and completely up to date at any given time. We would very much like to see ‘one’ major source/resource covering all of these particular ethical matters, and agree that the Law Council of Australia would be the most efficient developmental vehicle.^[106]

8.79     A coordinated national approach would assist in overcoming the problem identified by a group of QUT academics, ‘that each of these sets of guidelines is being produced independently of the others’:

As such, they all cover similar ground but differences exist which can cause confusion and undermine attempts at establishing best practice. Guidelines, such as those with respect to assessing capacity … have recently been updated in, for example, New South Wales and Queensland and yet they differ markedly from one another.^[107]

8.80     The QUT group also noted the importance of involving other professionals in developing guidelines on capacity assessment:

An interdisciplinary approach through the inclusion of health professionals in the preparation of guidelines will expose the process to wider scrutiny. Such external investigation will strengthen the development and application of any guidelines, especially when proposing that the health professionals have a greater role in the context of testamentary and enduring documents as a way to combat elder abuse. …

Building upon this would then be the inclusion of other relevant stakeholder groups including financial organisations, medical and legal insurers, but also groups representing people who have had their capacity assessed to ensure that superior assessment processes taking into account the lived experiences of the people who will be the subject of such guidelines.^[108]

8.81     The National Older Persons Legal Services Network also suggested that the Australian Solicitors Conduct Rules could include commentary on the importance of legal practitioners being aware of elder abuse in their practice.^[109]

What lawyers are required to know

8.82     In the context of an ageing population, and the recognition that wills and other advance planning documents are a significant exercise of autonomy,^[110] lawyers may well become increasingly called upon to assist in the preparation and execution of such documents. Lawyers may therefore be in a key position to recognise where clients may be affected by cognitive impairments or subject to undue pressure in relation to their preparation. To ensure that lawyers can play this crucial supportive role, they need to have an understanding of legal competency relevant to the particular context, and how to ensure that the documents are freely and voluntarily made by people who are legally competent to do so. Knowledge about such matters will not necessarily be gained through the completion of a legal qualification, hence the importance of providing information about such matters in a coordinated way through law societies and the Law Council.

8.83     A specific knowledge of succession law is not a compulsory requirement for admission to legal practice in Australia. The Legal Profession Uniform Admission Rules 2015 set out the required ‘academic areas of knowledge’ for admission to practice in Australia,^[111] reflecting the work of the Law Admissions Consultative Committee.^[112] This includes the topic of ‘property’ and ‘equity’, but no specific requirement for knowledge of the substantive doctrines of succession law and the legal test of testamentary capacity. Lawyers are also required to learn about ‘ethics and professional responsibility’: a practitioner’s duty to the law, to the courts, to clients, and to fellow practitioners. With respect to practical legal training, which is also required for admission to practice, ‘wills and estates practice’ is only an optional practice area. Legal practitioners are also required to undertake mandatory continuing education on an annual basis. One common component concerns ethics and professional responsibility.^[113]

8.84     More particular knowledge about matters relevant to supporting clients in the preparation of wills may be obtained in several ways. Law students may undertake optional units of study in succession law, where available. Lawyers may undertake continuing professional development in a relevant substantive law area related to succession matters, or become accredited specialists in some jurisdictions—as in New South Wales, Queensland and Victoria.

8.85     Many lawyers, therefore, will not necessarily have a good understanding of the range of matters relevant to the preparation and execution of wills and the ways to reduce undue influence. Hamilton Blackstone Lawyers observed, for example, that, while legal practitioners who specialise in estate planning ‘are already well-versed (or should be well-versed)’ with the matters included in Recommendation 8–1, the ‘unfortunate reality’ is that ‘estate planning documentation is often not prepared by estate planning specialists: specifically, documentation is prepared by solicitors with little to no expertise in this space’.^[114] They also pointed to the reality of ‘the “commoditisation” of estate planning’:

where documents are sold ‘off the shelf’ as ‘products’ or prepared by solicitors with inadequate expertise, meaning ‘templates’ are usually produced with little to no regard to a client’s specific circumstances: DIY and generic versions are available online for less than a few hundred dollars, all at the click of a few buttons on an ‘instruction sheet’ and the provision of credit card details. Those with little to no expertise in estate planning promote ‘wills and estates’ services in a variety of forms, with the end product being a ‘one size fits all’ template which falls well short of being the definitive representation of one’s personal, business and financial circumstances and intentions. Wills are not prepared with the empathy and attention to detail that one should come to expect when reflecting on what should happen with their affairs when they pass away.^[115]

8.86     The importance of continuing legal education was emphasised by stakeholders,^[116] and particularly for the national implementation of reforms.^[117] The New South Wales Legislative Council also emphasised the role of continuing education. Its report, Elder Abuse in New South Wales, included a specific recommendation:

That the NSW Government liaise with Law Society of New South Wales to request that the Society include a unit on the assessment of mental capacity in respect of substitute decision making, wills and property transactions in its Continuing Professional Development Program for legal practitioners.^[118]

How lawyers are required to act

8.87     Even in the absence of specific subject knowledge, conduct rules reflect how lawyers are to behave in practice. Many aspects of these rules are relevant to matters reflected in the ALRC’s Recommendation 8–1. For example, the Australian Solicitors’ Conduct Rules 2015^[119] include the following obligations:

• as a ‘fundamental ethical duty’, to act in the best interests of a client in any matter in which the solicitor represents the client;^[120]

• a solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken;^[121] and

• a solicitor must follow a client’s lawful, proper and competent instructions.^[122]

8.88     While these rules depend on adoption in each state and territory, they are illustrative of conduct obligations nationally.

8.89     How these obligations may work in practice in the context of suspected elder abuse is seen in the following example, provided by Seniors Rights Victoria:

In one case a daughter-in-law took her mother-in-law to her own lawyer without discussing the matter with her prior to the visit, and gave ‘instructions’ to her lawyer of the changes required to her older family member’s will. The older person was at an enormous disadvantage in this situation, as she had no prior warning of the reasons for visiting an unknown lawyer. She was from a CALD background and had little experience in dealing with lawyers and limited literacy in English, so was placed in a difficult position, and given inadequate legal advice. Her daughter-in-law was at that time her main carer, and provided transport and assistance she relied on. The will that was produced appointed her daughter-in-law as Executor and also as a beneficiary along with other family members. The older woman was placed under enormous stress through this process and could not voice her concerns or disapproval.^[123]

8.90     Seniors Rights Victoria said that, in this situation, the lawyer should not have accepted instructions in this manner, and ‘it was unclear in retrospect who the actual client was, as the daughter-in-law had paid the lawyer’s account’.

A lawyer must receive instructions for a will from the Testator direct, and also be satisfied of the client’s capacity to provide those instructions.

Equally the conduct of any lawyer who undertakes instructions that alter the legal and financial standing of older people through instigating transactions they regard essentially as transactional matters, is seriously in breach of their ethical and professional conduct standards. The lawyer in this case has, by default, sanctioned elder abuse against an older client.^[124]

After the family relationships subsequently broke down, the older woman revoked this will, and was able to then make another will in accordance with her own wishes.^[125]

8.91    The problem of identifying who the client is may also arise where other professionals are involved in estate planning. Estate planning advice often involves multiple parties (both legal and natural persons) and includes input from a number of professionals such as lawyers, accountants and financial planners. In this context, it is important to be clear about who is the client. The Code of Professional Practiceof the Financial Planning Association of Australia, for example, refers to this in requiring that ‘A Member must identify the client to whom professional services will be provided’.^[126] Financial planners are likely to play an increasing role in relation to advance planning documents, such as binding death benefit nominations in the context of superannuation,^[127] which are considered in Chapter 7. To ensure that they are able to contribute to safeguarding against elder abuse the guidelines available to them could be enhanced in light of the material available to legal practitioners.