Wills laws need to guard against exploitation of elderly

Hansard: 21 June 2007 ASSEMBLY

Mr CLARK (Box Hill) — The Wills Amendment Bill makes a small but important alteration to the Wills Act 1997. It relates to the very difficult area where there is a person with a disability or some other form of incapacity which means that they are not able to make a will for themselves.

There has been provision in the Wills Act for some time that deals particularly with the situation where a person has at some stage had the legal capacity to make a will but at some later stage has ceased to have that capacity.

The act as it stands makes provision for an application to be made to the court for a person to have leave to make a will on behalf of the person who is suffering from that disability. That is clearly considered to be preferable to the situation where no will is made at all and therefore the person concerned may die intestate and their estate is distributed in accordance with the rules relating to intestacy.

The bill before the house proposes to redraft and substitute the relevant provisions in the Wills Act so it will cover the situation of a person who has never had the legal capacity to make a will. The intention is also that in those circumstances an application can be made to the court for permission for another person to make a will on behalf of and in the name of the person who suffers from that incapacity.

Of course there is a real difficulty with these provisions even though they are advantageous in comparison to the situation of somebody dying intestate. The difficulty, of course, is that there need to be criteria by which the will that is proposed to be made on behalf of the person with the disability is to be made. The wording that is in the legislation at present is drafted on the assumption that the person concerned at some stage was of full legal capacity and therefore it makes sense to try to anticipate having regard to what was known about that person at the time they had legal capacity as to what they would have wanted to be included in their will.

If you are dealing with someone who has never had legal capacity, then you cannot apply that test because you do not know what that person would have wanted had they been a person of full legal capacity. In fact it raises quite profound conceptual questions in relation to various forms of disability as to what extent you can form a hypothetical construct about what that person might have wanted had they not been subject to that disability.

The amendment that is being made by the bill replaces the existing form of words in the act as it stands with an alternative form of words that is broad enough to cover a person who has never had legal capacity. The key provision is that contained in clause 3 of the bill.

What it is going to do is substitute, in section 26(b) of the Wills Act, a revised form of words which says:

the proposed will or revocation reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if he or she had testamentary capacity.
In other words, the test is going to be based either on what it is thought those intentions were likely to have been or what they might reasonably have been expected to be. As a form of wording, that now covers the situation of a person who has never had legal capacity.

However, that does not really resolve the matter in practise because while in form the wording of the legislation is broad enough to cover that situation, we are still faced with the practical dilemma that there have to be third-party judgements about what are in the best interests of the person concerned, or what the intentions of the person concerned might reasonably be expected to be.

This is a problem not only in this context but in many other contexts where decisions are being made on behalf of a person who does not have full legal capacity, and I have to say that I think in some respects the law creates a legal fiction, because you are trying to substitute a decision on behalf of the person with the disability when in fact there is only a limited amount of knowledge about what that person would have wanted, and there can be a real risk that decisions are made based not so much on the best interests of the person concerned but on the basis of what some third party believes ought to be done on their — —

Mr Lupton — On a point of order, Deputy Speaker, I draw your attention to the fact that a member is engaging in a lengthy conversation with people in the visitors gallery — certainly someone who is not a member of this house. I draw your attention to that matter and wonder whether it is appropriate for a member to be conversing with people in the visitors gallery during debate in the house.

The DEPUTY SPEAKER — Order! It is not appropriate for members from the chamber to speak to anyone in the gallery. I did not observe that, so I do not uphold the point of order.

Mr CLARK — Deputy Speaker, at the time the member for Prahran raised that point of order I was addressing the issue that in fact it is very difficult to make decisions on behalf of other persons, on behalf of persons with disabilities, and there is a real risk that in those circumstances the decisions that are being argued for are not so much what are in the best interests of the person with the disability but what is in fact wanted by the person who is making the application or advancing a proposition before some other tribunal.

This issue comes up quite frequently in the guardianship division of the Victorian Civil and Administrative Tribunal (VCAT). It is a very difficult issue because there is a real problem with elder abuse in our community.

Members will be aware of that difficulty, as will members in the other place — I refer in particular to Andrea Coote, a member for Southern Metropolitan Region in the other place, who has done a great deal of work on that issue — and my understanding is that the commonwealth Parliament is also conducting an inquiry into elder abuse.

Of course it is not just the elderly who are vulnerable; it is also people with disabilities. Unfortunately there is a somewhat naive view which prevails in some circumstances, that family members and others connected with an elderly person or someone with a disability are always going to act altruistically in the best interests of the person concerned. Probably in 95 cases out of 100 that is so but there is that serious difficulty with the remaining 5 per cent of cases in the community, where there is abuse going on.

Some aspects of elder abuse and the abuse of people with disabilities relate to how they are treated in a family context, such as being subject to physical violence, being subject to deprivations or being subject to unreasonable constraints on their liberty. It is a very difficult balancing act on the one hand to protect against those very real threats and on the other hand to avoid unreasonable bureaucratic intrusion into people’s lives and into family arrangements.

I fear that in some contexts we are perhaps getting the worst of all worlds, in that on the one hand we are not adequately intervening in cases of real and serious abuse of elderly people or of people with disabilities but on the other hand we are suffering from a great deal of unnecessary intrusion into what are fair and legitimate and beneficial family arrangements. I am sure many of us in this place have been approached by constituents who are suffering or experiencing or involved with these sorts of dilemmas. I have certainly raised these matters in this place on previous occasions and have given advice to constituents about what they can do to secure the best interests of people with disabilities in those circumstances. It is a very difficult issue that we as a community need to address.

It is important that we maintain a sense of reality in assessing these propositions in terms of objectively looking at what is in the best interests of the person concerned as well as what various third parties might argue the person concerned might have wanted had they been in a position to make a decision for themselves.

Clearly, to the extent to which there are clear views as to lifestyle or as to how a person would want their assets to be disposed of upon their death, that should be given a great deal of weight. But that needs to be tempered by running a reality check, as it were, on whether what is being asserted is actually in the person’s best interests. Unfortunately in situations of family stress, conflicts can arise amongst different family members, and those conflicts can arise in good faith.

Unfortunately also there is a minority of cases — and I know cases have been drawn to the attention of colleagues of mine in recent times — where it appears that at least one family member who has been appointed as an executor of a will, for example, has outrageously abused that position and has in effect stolen or misappropriated the assets of the deceased person.

Then you can get involved in a very heated conflict within the family about trying to get some resolution of the matter. It is very difficult for external parties to resolve these issues fairly and to ensure that justice is done, because they do not have the firsthand knowledge either of the factual situation within the family or of the true wishes and circumstances of the testator — and large amounts of family assets can be consumed in the course of such disputes. What this means in relation to the bill before the house is that a great deal of care needs to be exercised as to how these provisions are implemented in practice.

As I said earlier, in the vast majority of cases there are significant advantages in having a will prepared on behalf of a person who does not have legal capacity. That will can, with goodwill and proper supervision, be sculpted and drafted so that it better reflects the circumstances and the intentions of the person than would the rules of intestacy.

To that extent what is being proposed is a step forward; however, it is going to put an enormous responsibility and burden on the court in hearing the application. I will certainly be keen to hear what various members of the government have to say on this point as to how they envisage the legislation operating in practice, because what the bill and the existing legislation provide is that there is to be an application made under section 21 of the Wills Act to have leave to authorise a will to be made or revoked on behalf of a person who does not have testamentary capacity.

Then there is an obligation on the court to be satisfied about various things, including what is being proposed in the bill.

I understand from the briefing that was provided to the opposition by officers of the Department of Justice, for which I express the opposition’s appreciation, that in practice what happens is that both the application for leave and the consideration of the substantive merits of the issue by the court occur in the same hearing, so that there is not a requirement for two applications — one for leave, with the applicant then going away, drafting the will and coming back and seeking approval. It is all dealt with in the one hearing.

It is going to be important that the court is able to probe carefully into what is being put before it.

Clearly if ex parte applications are being made — that is, applications made simply by one family member or other interested person in respect of someone with a disability — there need to be mechanisms to ensure that the widest possible range of family members, friends and others who may have a legitimate interest and something to contribute to the issue are notified and have an opportunity to appear. There also need to be adequate mechanisms to ensure that the various propositions that may be advanced in the course of the hearing are properly tested and properly evidenced.

I have to say that one criticism I receive repeatedly of hearings in the guardianship division of VCAT is that the quality of those hearings can be variable — that is, some are very good, but in others the presiding VCAT member is inclined to make decisions without proper consideration of all points of view, is biased in favour of particular witnesses, has a propensity to be biased in favour of the Office of the Public Advocate ahead of family members or has a bias in favour of committing the assets of the person concerned to the care or control of State Trustees or of the public advocate ahead of family arrangements.

It may be said that those are simply the views of dissatisfied litigants, and without having sat in the tribunal oneself it is hard to be uncategorical about it, but I do have to say that, based on the persistent range of similar complaints that are raised with me by people with whom I have had long discussions and who seem to be very credible and cogent and indeed compelling in what they say, there seems to be an issue there. Certainly I have raised in this house cases where I believe the response of the Office of the Public Advocate in the exercise of that office’s responsibilities has left something to be desired.

When an application like this comes before the court it is going to be very important that the court ensure that all competing arguments are put and that there is a proper and fair probing of the evidence. Clearly different family members can assert different things about what the person with the disability would have wanted, or in the case of someone who has never had legal capacity, what their lifestyle had been and what their interests have been and therefore what their wishes might reasonably be expected to have been if they had had testamentary capacity.

In conclusion, although this bill is a very short bill, it is nonetheless very important. I should say that what has struck me and Andrea Coote, a member for Southern Metropolitan Region in another place, is the lack of consultation that the government appears to have had with groups that are involved with those with disabilities.

Mrs Coote circulated copies of the bill to a large number of groups that have regular dealings with and provide assistance to those with disabilities, and most of them were not even aware that the bill had been introduced into the Parliament. Therefore they found it difficult on short notice to express a view on behalf of those with whom they work. It is very striking that this bill has clearly not been the subject of consultation with those whom it could be expected could have a very useful and profound interest on behalf of those they represent.

The responses we have received reflect concerns about how governmental institutions relating to people with disabilities operate and that this will become part of a bureaucratic system that will not pay proper regard either to people with disabilities or to their families, and this is something about which we have concern.

As I said at the outset, it is particularly in relation to elder abuse, and it is something that my colleague Mrs Coote has given a great deal of attention to. Her work and the work of others, and the evidence that is coming forward from the commonwealth inquiry and others, indicates that the practical implementation of this bill is something that is going to require very careful attention to ensure that it works in a beneficial manner and is not open to abuse and misuse by a small minority.

On that basis the opposition does not oppose the bill, but it will be very keen to hear from government members during the course of this debate what practical measures the government has in mind for the implementation of this legislation to ensure that the various concerns I have raised are protected against.