Estate Planning: A Practical Guide for Professionals Helping Australians Age Well, 5th edition by Michael Perkins and Robert Monahan has now been published.
Michael Perkins spoke to us about what has changed in the new edition and how it reflects the new estate planning conversation professionals need to have in 2021 and beyond.
For generations the job of estate planning has been done with the signing of wills and maybe powers of attorney and guardianship. The focus has been on after-death events rather than the needs of clients during their lives.
But with our increasingly ageing society has come a shift in thinking. People are living longer and, post-2020, facing increasing uncertainty about future incomes and choices about where they will live in their ageing years. Individuals, their families and those they consult for advise are facing new pressures. New skills and services are needed to help reduce these pressures as well as the risks to the health, wealth and wellness of people considering estate planning.
The wait for a new approach to estate planning is over, with the publication of the updated and retitled 5th edition of Estate Planning: A Practical Guide for Professionals Helping Australians Age Well by Michael Perkins and Robert Monahan.
Lawyer for more than three decades, and Director of multi-disciplinary professional services practice, Autonomy First, co-author Michael Perkins describes this as an essential text for practitioners in accounting, tax, finance and law. Adopted for years by universities and tertiary courses, this text also forms part of the professional practice library for financial planners, accountants, lawyers and tax advisors.
An estates practice lawyer, Michael Perkins says the book is “for anyone serious about working with private clients and dealing with wealth conservation, administration and succession.
If you are in the business of doing these things you are in the business of using the knowledge in the book. It includes extensive treatment of the law relating to capacity and also the issues of dealing with cognition and ageing clients in any professional practice. There is a level at which this is applicable to any frontline worker onboarding a client.”
“Increasingly we are also dealing with the challenges faced by referring occupational therapists, psychologists, neurologists and GPs. Patients are asking them ‘Hey does my mum have the capacity to do x?’. Without up-to-date know-how and the right tools, these professionals find themselves ill-equipped to provide an answer. And that’s why there is the need for the book and also for the unique approach taken by Autonomy First and our Capacity & Capability Clinic. They represent a set of resources to reduce that skill deficit in the professions and the community.”
The new estate planning conversation
The legal core of the book has been updated in line with changes in the current legislation and cases. It also reflects the impacts of the Royal Commissions into Misconduct in the Banking, Superannuation and Financial Services Industry and into Aged Care Quality and Safety as well as the Financial Planners and Advisers Code of Ethics 2019.
Revising the title of the 5th edition also points to a fundamental shift away from being a text only for lawyers and financial planners to a wider audience including those in health and allied health, and a new estate planning conversation.
“Families today are facing complex problems and they need help. Primary here are a range of issues relating to ageing family members and wealth retention inside the family. It is important to think outside the post-death aspects of estate planning and to start talking about wealth conservation, administration and succession as well,” Perkins says.
What does your younger self owe your older self?
“At Autonomy First, as well as in this book, our purpose is to help our clients age well. This means answering the question, ‘What does your younger self owe your older self?’ What are the decisions you need to make now to make things easier on members of your family in the later stages of your life?”
“You need to have a sense of what you want to achieve in the future for yourself, your family and those you are connected with. That’s the heart of the estate planning conversation in 2021 and beyond.”
“It’s not just about death and dying, it’s not just about having a will, power of attorney and guardianship. It’s about helping clients, their families and connections, be resilient, to adapt and sustain themselves now and for the foreseeable future.”
Helping families to continue to row in the same boat
Perkins describes his role for families in estate planning in one simple phrase: Helping families continue to row in the same boat. He says that families need to share the same values, and embed these in the relevant legal documents and arrangements, for an ethics of care approach to take hold.
This is highlighted if we explore where elder abuse comes from. “Elder abuse fundamentally arises when elders and their supporters are not sharing the same values,” says Perkins.
“At Autonomy First, our role is to provide discipline and focus to people delivering ongoing care to individuals and families where the person under care is not fully independent,” says Perkins.
“There is a skill gap between the average family and what they need to be able to do their job properly under a power of attorney or power of enduring guardianship. We are addressing that skill gap with a supported decision-making methodology to keep a person’s will and preference safe.”
“Supported decision making is a methodology that makes that job easier. Autonomy First deploys supported decision making as part of our tool kit to allow families to operate properly and safely and mitigate the risk of elder abuse emerging, maximising the quality of life of the person under care. Our focus is on promoting an environment that keeps a person’s will and preference safe and protected and keeps them supported and advocated.”
Understanding the power in a power of attorney
“A core message that comes out of this is that the power of attorney or the power of guardianship is not just a licence to ignore the will and preference of the donor of those documents,” says Perkins.
“The challenge for front line professionals is when an attorney or guardian has a family member who may be in hospital or in a residential aged care facility and says: ‘Don’t worry about talking to them, I have power of attorney and guardianship, just talk to me.”
“The reality is that Australia is a rights-based society. We have signed on to the UN human rights system and we are a signatory to the UN Convention on the Rights of People with Disabilities. Out of this has come the National Decision-Making Principles, which simply say that everyone has the right to make a decision.”
“So, what needs to be reconciled is a person’s right to make a decision and the fact that they may have appointed a power of attorney and guardianship. Supported decision making is a landing point where the tension between these two things can be more proactively dealt with and resolved.”
The positive social impact of private practice
With the publication of the 5th edition of Estate Planning, Michael Perkins looks to create a lasting impact on private practice and its clients. “The 5th edition has been an evolving landscape that captures the body of knowledge of Robert Monahan and myself and it codifies the knowledge that underpins our practice at Autonomy First.”
“Looking at the social impact of private client practice – this is an aspirational issue for me. We hope to help individuals and families be the best versions of themselves they can be by becoming more effective decision makers and supporters of themselves. This brings about a positive social impact as practitioners and families become more self-sustaining decision makers as a key outcome of the work that we do,” says Perkins.