PROBLEMS WITH PROBATE. gadens. gadens 5 FEBRUARY 2018

Transcription

1 PROBLEMS WITH PROBATE 5 FEBRUARY 2018

2 Why do we need to disrupt and innovate to thrive?

3 Objectives 2 Impact of upcoming changes What does this mean from a practical perspective Who is the new consumer? Who pays Scenario Take home messages

4 Impact of upcoming changes 3 Consumer directed care by stealth. Change of culture Change of mindset of individuals Legislated changes

5 What does this mean practically 4 People will have higher expectations People will have expectations of what their money will buy People will be better informed. People will get creative in how to pay. What are you getting yourself into?

6 5 OLD CONSUMER Patient, Resident, Client, Care Recipient, Customer, Consumer Basic Fee Culture of Gratitude Passive recipient Asks : May I Trusts care providers No risk taking NEW CONSUMER Patient, Resident, Client, Care Recipient, Customer, Consumer User Pays Culture of Expectations Active authors of care plans States: I will/want. Requests staff preferences Self determination

7 Future Consumer 6 Gain information on line Share experiences on line Individualised care, not programmatic Less loyalty to a brand Higher expectations More questioning

8 Who pays? 7 Can someone else pay a RAD? Why would someone else pay a RAD?

9 Who pays? 8 Who is entitled to the balance refund? The person who paid it; The resident who paid it on admission; or the family who paid it after admission What deductions are taken from the RAD?

10 Documentation 9

11 Probate 10 What is probate? Must all estates go through probate? What are the families expectations? What does the Will say? What do your policies and procedures say?

12 Probate 11 Time taken for Grant of Probate (Simple Estate) Victoria South Australia New South Wales 5-10 working days Tasmania 6 weeks 10 working days 7-10 working days Cost <$1000 Nil >$ $350 <$1000 Nil <$ $750 >$1M - $3000 <$1000 Nil Between $1M and $2M - $3,000 >$5M - $5000 <$50,000 - $150 >$250,000 - $750 Jurisdiction Supreme Court Probate Victoria Office Supreme Court Probate Registry Office Supreme Court NSW Probate Registry Office Supreme Court Probate Office Public Yes No Yes Yes

13 Scenario 12 A daughter (Kelly) assists mum (Agnes) in finding residential accommodation. Agnes has dementia and has been deteriorating over the past few months Agnes is admitted to the Memory Care Facility Kelly does not want Agnes to sell the family home, so she takes the money from Agnes account to pay the $500,000 RAD

14 13 Agnes lives at the facility for about 8 months after which time she dies. Kelly demands the facility refund the RAD to her as Agnes sole beneficiary and executor of the will The facility have evidence that: Kelly was EPOA (financial) Kelly executed the agreement Kelly visited regularly Kelly was noted on all documents as the next of kin The facility refunded the $500,000 to Kelly

15 What could possibly go wrong?

16 Scenario 15 Staff have been hearing about a son called Teddy, but have never seen him and has never discussed him. Agnes, from her day of entry, kept talking about her favourite child Teddy and how wonderful he was and how he is well known overseas. Staff thought it was part of her dementia.

17 Scenario 16 Who should turn up the favourite son, Teddy, who nobody thought existed. Teddy says where is mum s refund? It should be in the estate and it s not. You subsequently get a lawyers letter saying that they act for Teddy and that the refund that is due and payable under the Aged Care Act has not been refunded and demands payment of the $500,000 RAD

18 Scenario 17 The matter goes to hearing and it is determined that: 1. the provider had an agreement signed by the resident (whilst she still had capacity) which reflected the $500,000 RAD 2. the provider has no evidence to support that it made any attempt to refund the balance to the estate 3. The provider was aware of the lawyers acting on behalf of the resident and the holders of her last will and testament. 4. The court ordered that the provider refund $500,000 to the estate of the resident.

19 18 The provider then sought to make a claim against Kelly for the $500,000 refunded to her only to find that, after having spent several years providing care for her mother, that she had left the country with no forwarding address

20 RISK FREE: Always require Probate or Letters of Administration 19

21 Practical Solutions 20 Accurate information on admission Copy of all powers Copy of the Will if necessary Copy of the death certificate (if resident died in hospital or on leave)

22 Scenario 2 21 Small country town Jack s dad, Jack Senior died at the local residential aged care facility Jack senior has a $60,000 accommodation bond balance Facility knows Jack junior was an only child Facility pays Jack junior the $60,000

23 Issues 22 Is there a discretion to refund How do you mitigate the risk Payable to Jack s estate Pay to Jack Senior s lawyer

24 Objectives 23 Who is in charge when I am alive? Who is in charge when I die?

25 Who is in charge when I am alive?

26 Where are we now? 25 Power of Attorney Enduring power of attorney (financial) Enduring power of attorney (medical) Enduring power of attorney (medical treatment) Enduring power of Guardianship Supportive decision maker

27 Changes in March Legislation will change in March 2018 Medical Treatment Planning and Decision Act 2016 Enduring power of attorney will include both financial and personal matters Shifts from best interests to promoting values and preferences The changes will include recognition of advance car directives Instructional directive and/or Values directives

28 Important point 27 Any appropriately executed decision you have previously made will remain valid after the changes in March 2018.

29 Who is in charge when I die?

30 How do these roles differ from an executor? 29 The Executor appointed under the will The Administrator appointed under Letters of Administration An executor has no powers until the death of the principal

31 Resident and Client Agreements

32 Gadens Agreement 31 Refund of Refundable Payment If you have paid a Refundable Accommodation Deposit or Refundable Accommodation Contribution (Refundable Payment), we will refund the Refundable Deposit as follows: If you die: to your estate within 14 days of us being provided with a copy of probate of letters of administration.

33 Legislation

34 33 Aged Care Act 1997 (Cth) provisions for probate Victoria Administration & Probate Act 1958 (Vic) Tasmania Administration & Probate Act 1935 (Tas) NSW Probate & Administration Act 1898 (NSW) South Australia Administration & Probate Act 1919 (SA)

35 Who is in charge when I die?

36 Who is in charge when I die? 35 Your executor If you die intestate: Victoria Tasmania NSW South Australia

37 Risk Management

38 Risk Management Emphatic advice to only refund in accordance with the legislation, i.e when you have sighted probate or Letters of Administration; 2. Refund in accordance with the agreement. 3. If absolutely necessary, and you determine to refund without sighting Probate or letters of Administration then: 1. refund only to the estate 2. made payable to the estate 3. care of the estates solicitor and 4. Have an indemnity from the executor or their solicitor

39 Summary 38 You are entitled to require Probate or Letters of Administration, protect yourselves; Know who the decision makers are Refund only in accordance with the legislation Refund only in accordance with the agreement If all else fails, mitigate the risk and seek advice Failure to do that and you need to decide how much you are able to lose.

40 QUESTIONS?

41 Disclaimer 40 The information contained in this presentation is intended as general commentary and should not be regarded as legal advice. Should you require specific advice on the topics or areas discussed, please contact Sabine Phillips directly. Sabine Phillips Partner T: E: sabine.phillips@.com