Elder law booming for lawyers

Dubbed “elder law”, specialists in the field say come 2011, the niche area will be booming, with lawyers in demand to solve a range of complex family dilemmas including whether elderly parents have the capacity to make their own decisions.

An article in The Australian’s legal affairs section reports Brian Herd, elder law specialist and partner at Queensland-based Carne Reidy Herd Lawyers, saying that baby boomers would produce more work for lawyers than their parents because of the greater complexity of their lives.

“They’re the ones that are going to have significant wealth, significantly complex lives, complex families. The current generation is a bit simpler in terms of their circumstances,” he said

Mr Herd said a wealth of legal work stemmed from people growing old and this was not confined to the traditional areas of power of attorney and wills.

He said there was a growing need for “compacto agreements” which established contractual arrangements between elderly people who were companions rather than partners in a defacto-style relationship.

“Older people tend, if they can, to join or become companions to older people and as a result we’ve coined the phrase compactos to describe people who live as companions, not in a sexual or relationship sense but simply as companions.”

Mr Herd compared the relationship to students living together in a share house and said it was another example of “life coming full circle” for older people.

Older clients were also increasingly demanding trusts be established for their pets because of concerns they would not be looked after when they died. Mr Herd said one client wanted to leave all her estate to her dog but because this was not legally possible, a pet fund was established, ensuring enough money was left for the dog’s care.

There was also demand for “impoverished planning” because clients wanted to be eligible for even $1 of the aged pension due to other benefits that flowed.

Family agreements to establish how elderly parents would be cared for were also becoming more common. Mr Herd said he had one family who established an agreement that saw a daughter get paid to care for her mother because the family did not want to place her in aged care.

Issues surrounding the capacity of an older person was one of the biggest areas of elder law. He said disputes could arise in families over whether their parents had the capacity to make their own decisions and whether an enduring power of attorney should be appointed.

The economic downturn had also seen an increase in elder abuse and Mr Herd said some children saw their parents as being the solution to their money problems.

He said the area of elder law gave lawyers an insight into the “extraordinary amount of dysfunction” in some families but it was this same dysfunction that created work and led to “legal bliss”.

He said elder law transcended many areas and lawyers in other specialities needed to learn more about the practice.

Mr Herd  also said lawyers held prejudices against older people, including that they were tight with money and sought legal advice over minor and trivial matters. But he said, in his experience, older people had many advantages as clients including paying promptly, always being on time and being prepared to pay for quality and reliability.