Tara (00:48):
Thank you for tuning back into the Art of Estate Planning Podcast. We are in for a special treat today. We have a recording of a training that Professor Nola Ries delivered to the Art of Estate Planning Facebook community in our monthly free power hour.
(01:11):
Professor Ries is an experienced legal and social science researcher with the University of Technology Sydney. She is a co-founder of the Dementia Law Network and leads a programme of research on legal issues for people living with dementia, dementia capability for the legal profession, and legal and policy frameworks for a dementia-inclusive society. So in this podcast episode, Professor Ries shares with us the research she did on her two reports, the dementia capability for the legal profession and legal issues for people living with young onset dementia in Australia. Both of these reports I'll put in the show notes so you can download them and have a read. And I really hope you enjoy this conversation with Professor Ries.
Nola (02:03):
Thank you so much for the invitation and the introduction and thank you everyone who's joined in the session today. So as Tara mentioned, I will share insights from two research projects I've led at the Faculty of Law at UTS. And just a brief background on me. I've been an academic lawyer and researcher on a full-time basis since moving to Australia 12 years ago. I do come from a practising background in Canada where I'm from. I practised in health and human rights law and did administrative and civil litigation. And when I moved to Australia, I went through the process of gaining admission in New South Wales. And in addition to my legal qualifications, I've got a bit of a multidisciplinary background. I have a master's degree in public administration and have a lot of experience working in the public sector and with public sector organisations. And I did my PhD in behavioural science.
(03:09):
So with that kind of background, my research is very applied. So I do research into real world legal issues with the hope that the findings from research can inform improvements in practise and policy or services. So that's just a bit about me. So we will have a series of poll questions throughout the event. So the first poll question just asks a bit about what your role is so we get a sense of the audience members. I can see a preponderance of lawyers, which is excellent and as well some financial advisors and accountants also excellent because this area does often involve that multi-professional input. So I will primarily focus on the report that explored what dementia capability means for the legal profession and I will tie in some insights from another recent project that investigated legal issues for people with young onset dementia. So to get started, what does dementia capability mean?
(04:22):
So it means that professionals have the knowledge, skills, attitudes, and behaviours needed to work effectively with clients who live with dementia, those who support them, but also other clients seeking to plan ahead for the future. And why is dementia capability important? We have an ageing population. More people are living longer with dementia and young onset dementia is also increasing. 70% of people with dementia live in the community, it's quite likely they might need legal or financial advice as somebody living in the community. Lawyers also report in the projects I've done an increase in the number of clients who are coming to them following a dementia diagnosis and they're also also having inquiries from people who may have a family member with dementia as well. Dementia is a leading cause of disability and death among older Australians. So even if the client does not have a diagnosis of dementia today when they're coming into your office to see you, it is reasonably foreseeable that they could develop dementia in the future.
(05:42):
So the planning that you are helping them do is likely going to be planning that will take effect in the future when dementia may be the condition that requires an enduring power of attorney and during guardian to be invoked or when their state is being administered following death with dementia. And just a note on terminology, I will use New South Wales language when I'm referring to things like enduring guardian. But I think you know what I mean in the context of the jurisdiction where you are. So given what we know about the prevalence of dementia, when you're drafting those legal documents or helping clients with their financial planning, all of that work should be informed by an understanding of dementia, whether or not your client currently has a diagnosis. So I wanted to ask, are you familiar with Australia's National Dementia Action Plan? So this is a document that was developed across Commonwealth state and territorial governments.
(06:44):
It is an ambitious 10-year plan that wants to see by 2034 that we are a dementia inclusive society. And this plan has a number of key actions. There are eight key actions. One of the key actions relates specifically to workforce capability and the action plan acknowledges the important role that the legal profession has in advising people on planning for the future if they're living with dementia. So if we look to this national plan, capability of the legal profession fits squarely as a priority area. The other two documents that are relevant at a national level, there are national clinical practise guidelines and principles of care for people with dementia. That particular guideline document is in the process of being updated, but it too refers to the importance of legal advice and also financial counselling and advice for people following a diagnosis of dementia. Likewise, the other document, I was curious if any of you are familiar with national guidelines for memory and cognition clinics.
(07:57):
So these are the clinics where some people may be referred to have a diagnostic assessment and it may be a clinician within one of these clinics who would provide the diagnosis of dementia to a person. So importantly, this set of guidelines says that after a diagnosis, the clinic needs to provide support and advice to enable clients to understand, adjust to, and live well with the diagnosis. And clinicians should therefore be giving guidance around referrals, recommending that people access support services with dementia expertise and I've underlined those on the slide. And an example of relevant support services are legal services. So that raises a question, what does it mean to be a legal service that has dementia expertise? So that's really a question that prompted this research project. So the project on dementia capability asked this primary question, what does it mean for a lawyer to be dementia capable?
(09:07):
So what kind of knowledge, skills, attitudes, and behaviours are important so that lawyer can meet the needs of a client who may have a dementia diagnosis or any client seeking to plan ahead for the future where again, statistically there's a reasonable chance that future could involve living with dementia. And we also asked about strategies that would help lawyers develop those attributes. And one of the key strategies was continuing professional development. So here you are on the journey to enhancing your own dementia capability, which is excellent. So just a bit of background on the dementia capability project. We involved lawyers from across the country. We had lawyers practising in every jurisdiction except for ACT. We mainly recruited lawyers who really work in wills and estates. So some of you participating today, you would be the kinds of practitioners we sought for involvement given the nature of your practise and expertise, lawyers who serve on professional committees like law society, capacity or elder law committees, as well as lawyers in the community legal sector who perhaps work with specialist seniors or elder law programmes.
(10:21):
So we wanted lawyers who would bring a degree of expertise to this topic area. We also involved people with living experience, so that included people living with dementia as well as people who support someone with a diagnosis. And we had an advisory group as well that had an experienced barrister and a experienced solicitor who really work in this field as well as consumer representatives as well. So it was a two-stage project. So based on existing literature and some of those guideline documents I just mentioned, we developed a draught list of attributes of a dementia capable practitioner and then we did in- depth interviews with all of these participants to get their insights on their practise, their experience, what dementia capability means to them. And then we developed an updated list of the attributes of a dementia capable lawyer, a set of statements to explain each attribute and then we went back to all the participants with a survey to say, "Here's the updated language.
(11:29):
Does this sound satisfactory to you? " So after that research process, we ended up with five attributes of a dementia capable practitioner. So there's knowledge, legal rights and risks for the client, capacity, of course, is a central consideration, communication and advocacy. So I'll work through a bit more detail on each of those attribut areas and we'll have a few more poll questions as well for your input. But to begin, a clear message through the project is that dementia capability is vital for the legal profession. So for example, one lawyer said, "We need to get a grip on our ageing population and the increasing number of clients with dementia." So we need a lot more detailed understanding of how to support clients appropriately if they come to us following a diagnosis. And people with dementia who were part of the project really emphasised the value of the good legal advice that they had received.
(12:35):
And again, just emphasising that having lawyers more educated and understanding about dementia would make a big difference to a lot of people. And lawyers also, again, they said we are seeing an increase in people coming to them following a diagnosis. So that suggests that those doctors and other health practitioners working in dementia assessment and diagnosis, they are doing their job and saying, "You should go and get some legal advice and some financial planning advice for your future." But some lawyers said sometimes people come to them in more of a crisis situation or when concerns around capacity are really acute and many lawyers emphasise the importance of doing this kind of legal planning much earlier. So the first attribute area is in regard to knowledge. So a dementia capable lawyer would have current information about dementia that is relevant to legal practise. We're not asking lawyers to pretend that they're medical doctors, but it's knowing enough about dementia that's relevant to being a legal practitioner and that would enable a person-centered approach so that each client has assurance that their unique needs are met and that their abilities are supported.
(13:51):
So we've got a poll question here, just a quick little knowledge question.
Tara (13:57):
Okay. So the question is true or false dementia is another term for Alzheimer's disease with the results are still coming in, but about 85% are saying false and we're now 17%, 18% saying true.
Nola (14:14):
All right, thank you. Yeah. So false would be the better answer. So dementia is not just on single disease. So an important knowledge point is that dementia describes a collection of symptoms that are caused by a range of disorders. So there are over 100 conditions that can lead to the signs and symptoms of dementia. Of course, Alzheimer's disease is one of the more common forms of dementia and I've put a link on the slide to Dementia Australia's website. It's a good source of information about different types of dementia. Another important knowledge point is that dementia is not only or always about memory loss. So some people may have a diagnosis of dementia, yet their impairments are not in relation to memory. So it's again, important to understand from the client themselves what are the particular symptoms of dementia that they live with. And another knowledge point is being aware that dementia can occur in younger people.
(15:20):
So young onset dementia refers to any type of dementia that occurs in someone younger than age 65. So that kind of young onset dementia is increasing and people diagnosed at younger ages have distinct legal needs. They're receiving a diagnosis of dementia when they may be in their 40s or 50s, they may be in senior career roles, have dependent children still living with them. So very busy and complex lives where the kinds of legal issues and financial planning they need can be much more complex. So what we heard about knowledge, people living with dementia who are part of the project said there's still that stereotype that a person with dementia, they're always going to be really old. They may be really vague and confused have memory problems and not every case of dementia looks like that. And lawyers also recognise that they can be misled by labels.
(16:21):
So you hear, I'm going to see a client, they've said they're coming following a dementia diagnosis. So a person might think, okay, I know this client has the diagnosis and there may be an assumption of lack of capacity, which of course we should be thinking more about a strengths-based approach and how capacity can be supported rather than assuming a lack of capacity. So in terms of legal rights and risks for the client, so a dementia capable legal practitioner should provide comprehensive advice that enables clients to maintain choice and control in their lives. So we do have a poll question here asking, do you have experience with clients with a dementia diagnosis?
Tara (17:09):
Okay. So far about 70% of the audience today are saying yes, they do have experience.
Nola (17:17):
Excellent. Let's go to the next poll question then it asks about when you think about the ... If you can think back to maybe the first client you had or a recent client, how confident did you feel in your preparedness to meet the needs of that client with dementia? All
Tara (17:35):
Right. About 50% are somewhat confident, 30% quite confident. We've got 1% very confident, so perhaps one person and 20% not at all confident.
Nola (17:49):
And I'm really pleased to hear that there are some people who rate their confidence really high. Another key point coming out of the project on dementia capability is that both lawyers and people living with dementia want to see dementia champions. So dementia champions exist in healthcare services, aged care services. So people who do feel very confident, they are knowledgeable and confident in working with people with dementia. So likewise, there was a view that within the legal profession, we need people to be champions to share their knowledge and expertise as well. So it's excellent that there are some potential dementia champions in the audience. So again, a dementia capable practitioner should be able to use preventive strategies to reduce risks of abuse, know how to identify and respond to potential situations of abuse because people living with dementia may be more vulnerable to abuse, particularly financial exploitation, and also recognise the needs of diverse people with dementia and also have good professional networks and referral pathways to relevant services and programmes.
(18:58):
So that might be those referral networks to the financial planners or other services a client might need. So elaborate on a couple of those points just around prevention. So a really important way to prevent future abuse or problems for your client would be to ensure that they have really high quality legal planning documents. So I'm going to give a sneak peek of some relatively new data that I was involved in a project with colleagues where we did a survey of older adults in New South Wales. So these were people 65 and older. The mean age of respondents was 72. We asked about, do you have a will enduring power of attorney and during guardian or an advanced care directive? So as you can see, nearly everyone said they had a will. Three quarters said, yes, I've got an enduring power of attorney in place, 65% have an enduring guardian and advanced care directive uptake still relatively low, so only around a quarter of people.
(20:01):
So encouraging in terms of more than half and almost 100% of people say they have a will when we look at older people. I do want to give the caution that awareness of these kinds of planning documents and the uptake is definitely lower among younger people. So a person with young onset dementia may be much less likely to have these documents in place. Now, so that tells you a bit about how many people say they have these documents in place. What we did in this study was ask questions to assess the quality of these documents. So how recent is the document? Is it something you've done within the last five years, between five and 10 years, or is it over 10 years old? Are you still happy with what you documented in these particular legal documents? So if you've appointed someone as you're enduring power of attorney, are you still satisfied with that person?
(20:56):
Whatever your wishes as expressed in your will, is that still what you want? And have you had any major changes in your life circumstances that would warrant updating these documents? And I think the poll question has gone live, so I'm asking you, so of the wills, we've got nearly 100% of older people saying, "I've got a will." So how many of those wills do you think met the criteria for being of good quality? What are the results telling us?
Tara (21:25):
Well, this is fascinating, Nola, as well, because when we as estate planning lawyers help someone with their estate plan, we would nearly always do the enduring power of attorney and enduring guardian with the will. So this is making me think the fact that those statistics are not equal, that perhaps they're doing post office wills, DIY wills, online provider wills without legal advice would be my guess. Okay. Half of the participants have said they think about half of the wills made were of good quality. 20% are saying more than 75% were.
Nola (22:08):
No sceptics. Nobody thinks that the quality of wills is like less than a quarter of the wills.
Tara (22:13):
About 10% have said that and 25% are saying around a third of the wills were a good quality. I'd probably be saying a third than we.
Nola (22:25):
Well, here we go. 18% of those people based on the quality questions we asked would have a high quality will in place and
(22:38):
Also quite bad in terms of the enduring power of attorney. So only 12% of them met the criteria for being of good quality, 20% of enduring guardian documents and only 2% of advanced care directives. So very troubling findings that suggest many older Australians are exposed to avoidable risks by preparing documents that are of low quality from the start because they could be the DIY little will kit that was in the back of their closet and they thought, "Oh, finally fill this out. " So they don't get proper professional advice. It could be that maybe they did get some advice, but the documents nonetheless don't really reflect what their preferences are. So there can be problems with documents being of low quality from the start, or they may degrade in quality over time because they aren't reviewed and updated. So there's really a need for more public messaging and for the healthcare providers who are seeing clients or patients to remind them that these kind of documents need to be updated.
(23:41):
So you should go see your estate planning lawyer again so that people really need to engage in updating those documents and as well they need to communicate with the people who are appointed into these really important legal roles. So the number of people who said they'd had good conversations with their appointed attorney or enduring guardian was also relatively low. So it's really risky to promote the uptake of these legal planning documents without supports that strengthen the quality for clients. So whatever you can do with your clients to ensure that they are reminded and they're reviewing and updating the documents with your good advice is essential to dementia capable practise. Another area of interest are people who are solo ageing clients. So these are people who by choice or circumstances don't have trusted family or close friend networks. So I would regard myself as being at risk of solo ageing because all of my family are in Canada.
(24:42):
Probably got one trusted person who I feel quite close to in Australia who I have named in my legal documents, but if that relationship fell apart or that person predeceased me, then I could end up in this situation. So we've asked specifically some conversations about solo ageing people in the work on dementia capability and in the project on young onset dementia. So we do have a question, poll question, do you have experience with clients who are solo ageing? And the implication is when you say, now that you've done your will, let's talk about the enduring power of attorney or enduring guardian and enduring medical attorney. And they might say, "I don't really know who I want to appoint in that role."
Tara (25:22):
Okay. A hundred percent of our attendees today are saying yes, they have.
Nola (25:27):
Yes, it's a growing issue. So the Cota New South Wales did a survey of loneliness. So there's much more attention to loneliness and social isolation, particularly among older adults. So in that survey, so it was a survey of over 2,200 older people, 50% of them reported social isolation, meaning that they have few social relationships and infrequent social contact and 34% of people in that survey said they don't have anybody in their life they completely trust. So that means they probably don't have anyone they would name into these legal roles. And lawyers said, yeah, as the poll results indicate, there is this whole group of people who are on their own and that may be an extra vulnerability for them. They may be isolated or estranged from family or it could be that people close to them have, they've predeceased them and they're the last person standing as that lawyer said.
(26:28):
So in terms of dementia capable practise, this is an area where there needs to be some good thinking around what are options for those enduring representative roles. And some lawyers have described that they cast the net a little bit more widely. So the person might say, "Well, I've got a cousin or a niece or a nephew so maybe I could appoint them." But then that is potentially opening up a problem if the client doesn't really have a good or close relationship with those people. So appointing them might rest on a tenuous assumption that they will enrich that relationship and ensure those people really are suited to exercise those legal powers should they need to do so in future. There was a lot of concern around clients being fearful of the public trustee or guardian being involved in their lives in the future and some people or the clients would say, "I don't really have anyone I trust to a point so I know that I might end up being somebody who's the public trustee or guardian takes responsibility for me.
(27:33):
" They didn't really want to talk about it. They just hope it doesn't happen and if it does, hope for the best. So I think there is an important opportunity to talk more with clients about what the role and responsibility of those public authorities are and how that works. And then for a solo ageing person who doesn't have trusted people who will be their voice in the event they lack capacity to make decisions in the future, it is of heightened importance that they clearly document their wishes and instructions in documents like advanced care directives or otherwise so that whoever steps into a decision making role has some guidance to go on to know what that person's values and wishes are. So we're doing some new research that focuses specifically on solo ageing people. So if you're interested in that, please do get in touch and be happy to share more about that work.
(28:29):
So moving on to capacity. So of course capacity is a central concern in the context of being a dementia capable practitioner. So lawyers need to understand the core principles of capacity, be able to identify when capacity may be in question, also know how to support decision making capacity, touch a little bit more on that and then also recognise and respond appropriately when they can't act for the person due to that lack of capacity to give instructions on particular matters. So what we heard on that, so on person living with dementia described a really positive experience with their estate planning solicitor, was very empathetic and understanding and introduced the capacity issue in a very respectful and supportive way. That word empathy came up so many times from the people with dementia who are part of the project and lawyers, this was a common message. They said there's still a lack of understanding of capacity in the legal profession, especially for people with dementia.
(29:35):
It goes to a default of just asuming they lack capacity to make any decisions, which is incorrect. So there's ample professional advice on dealing with capacity issues, appropriately assessing client capacity, understanding different legal tests of capacity for different decisions or documents, as well as some really good guidance from various lost societies It's on how to communicate effectively with health professionals for formal assessments of capacity. I won't repeat any of that excellent guidance that's already available to everyone, but there was some interesting insights on the diagnostic process that came through in both the projects. We do have a poll question asking you how you would rate your understanding of the diagnostic process for dementia.
Tara (30:27):
About 43% have a limited understanding. 42% have a moderate understanding and 13% a strong understanding.
Nola (30:36):
Okay, excellent. So in the project on dementia capability on the project on legal needs for people with young onset dementia, people described going through the process of the diagnostic process and a striking number of them described that process as very distressing and disempowering. So people would go and have all of the assessment workup and then they might receive a phone call, a very short phone call saying, "We've determined that you have X diagnosis, you've got vascular dementia or frontotemporal dementia, whatever it is. So come back and see us in 18 months time." So sometimes it was as short as that, just a curt short phone call and people just felt devastated and just so disempowering. And where they were being advised, you should go talk to a lawyer, you should get your financial affairs in order as well. That that message of getting your affairs in order, we heard that phrase over and over again, that was equated to go away and prepare to die.
(31:41):
So the implication for your own sense of being a dementia capable practitioner is that if a client comes to you following a diagnosis, you should be aware that for many people, that process has been extremely depressing and distressing. So when people may in fact be in a state of depression, which could have some temporary impacts on their capacity. So it might be worth just talking if you feel like you were in the 43% or so who's got a limited understanding of that diagnostic process, this is where you could benefit from talking to your clients and asking a bit about how that process went for them and how they're feeling. So just be aware that people may not be coming to see you in a very enthusiastic frame of mind and it's just that I think we really need to shift that approach that this planning is about preparing to die.
(32:33):
So one of my bugbears, the New South Wales government has this really helpful website with really good information, plain language information about wheels, powers of attorney during guardian, but the heading is planning for end of life. So how disempowering is that? So I think across the health professions that are dealing with the diagnosis and the lawyers, the financial planners, accountants who are seeing the clients after a diagnosis, we have to scratch that negative mentality that this is about your end of life planning. It's planning about the rest of your life. I think reinforcing that message would also help with people reviewing the documents and updating them as they need them rather than that I'm going to do this once. It's kind of this depressing thing of preparing to die. So I'll just do the documents and then I'm just going to set them aside and try to forget about them.
(33:26):
So that's one of my key messages. And it also, we heard repeatedly from lawyers in the dementia capability project that dementia capabilities should be seen about optimising people's abilities, their decision making. It shouldn't focus on deficit. So again, shifting from, this is about end of life planning to planning for the rest of your life, which might involve living well with dementia. So really focusing on the strengths, thinking about being inclusive, strengths-based interactions and also challenging that internal ageism, but also this those internal assumptions that dementia is always about decline and deficit. And that also comes through in the attribute area of communication. So a dementia capable practitioner can communicate effectively with clients and importantly guided by the client's preferences. So people living with dementia who are part of the project had excellent ideas around what would support their own ability to understand legal information or financial planning information and what would help them make choices about what they want.
(34:36):
So having documents in advance so they could prepare, having electronic documents so they could have documents on their own devices so they could enlarge them or change formatting or colour. So it was something that they could best understand and process. Listening with empathy again was a key message and where the client attends with a support person, some clients did describe how the conversation was directed to the support person rather than the client themselves. So clearly it needs to be client focused communication. So in terms of respectful communication, I've got another poll question, which is, are you familiar with Dementia Australia language guidelines?
Tara (35:27):
Okay. These results are pretty clear 100% are saying no. No. People are not familiar. I'm personally not familiar.
Nola (35:36):
All right, good. So everyone, I know now everybody has learned at least one thing they didn't know before. Absolutely.
Tara (35:42):
Absolutely we have. Yes.
Nola (35:45):
Yeah. So again, just in terms of the communication, again, emphasis of empathy. So you could be the most knowledgeable estate planning lawyer, the most knowledgeable accountant, but if your knowledge is really dry and not delivered with empathy, being able to relate to the person, that doesn't really help in terms of a process of communication. And again, the emphasis should be on communication, taking time to make sure the client understands their options, the decisions that are open to them. And the taking time isn't necessarily that the lawyer has to have a longer consultation because commercial pressures certainly came through in the project as well, but that the client, again, they might have documents they can take away with them that they get in advance so they can take the time they need outside of your office to think things through and understand things. So in terms of the respectful language, so yes, the dementia language guidelines, I highly recommend them in a project on dementia capability, lawyers went and looked at the guidelines.
(36:50):
So like you, they had not heard of these guidelines and when they looked at them, they said, "These are really helpful." So when talking about people with dementia, using the language that puts the person first and their diagnosis comes after. So a person with dementia living with dementia or with a diagnosis. So calling a person a dementia sufferer, a demented person, calling people patients when you're outside of a medical context. So those are all the kinds of terms or phrases that people living with dementia, they do find again, disempowering kind of language. I've done some other work in dementia training where I asked lawyers to think about all of the places where they've seen some of this language that doesn't really meet the language guidelines. So it is quite pervasive. You can read court and tribunal decisions as well, which might be rife with people suffering from dementia, but I do recommend having a look at the guidelines and trying to incorporate them into your own communication.
(37:53):
All right. So the last attribute area is around advocacy. So advocacy steps away from that individual client professional relationship and looks broader at laws at legal systems and practises and opportunities to advocate for change that would at that structural level enable us to move towards a more dementia inclusive society. So that's looking at where are there opportunities for us as professionals to promote the rights of people living with dementia that may well be informed by experiences with our own clients, but allows us to advocate at that broader system level. And then also how can we support prevention by reducing risk factors for dementia? So this is another, this might be our last poll question asking about prevention of dementia. So what proportion of dementia cases can be prevented or delayed through addressing modifiable, so changeable risk factors?
Tara (38:57):
I'm really interested to find, I mean, I'm sure we are all interested in knowing what the findings are here and what we could personally do for ourselves.
Nola (39:07):
Yes.
Tara (39:08):
So 6% are saying there's very few cases can be prevented. 34% think a small proportion can be prevented. 44% think about half of the cases can be prevented and 16% saying they think most cases are preventable through addressing the risk factors.
Nola (39:29):
Excellent. Well, yeah, it's actually around 45% of dementia cases worldwide could be prevented or delayed. So many cases of dementia are linked to factors that we're exposed to throughout our lives and many of these are risk factors that can be changed or prevented. I like this graphic. It's from Alzheimer's Research UK. So outlining a number of factors that contribute to an increased dementia risk. So in the past, I would say that there was more thinking that dementia is kind of something that it's a risk that comes with age and kind of the vagaries of your genetics, but now there's just a lot more research to understand what are risk factors for dementia. So a number of them are ventable. So when we look at a number of ways that by having healthier lifestyles that that can help to reduce the later life risk of dementia.
(40:31):
So when we come back to that question of advocacy, I would argue that laws are really important in mitigating a number of these risk factors. So smoking is a risk factor for example. So think about all of the ways that law has been used to put taxes on cigarettes to limit where smoking can occur. So law becomes a really powerful intervention to promote the ability of people to have healthier lives. So this isn't a matter of just individual responsibility, but importantly, it is a matter of ensuring that laws and policies are creating conditions where people can live healthier lives. Another example is exposure to air pollution. So that's really beyond a lot of our individual control, but when we look at how governments regulate emissions, traffic planning, vehicle use, all those kinds of things, emission standards, then that's really what could protect people from developing dementia in their life.
(41:34):
So that's my pitch for thinking about that broader structure of laws and our role as advocates to have a say in laws and legal systems and practises. So having involvement in law reform submissions, there have been a number of recent law reform inquiries into topics like social isolation in older people. The New South Wales Parliament is currently doing inquiry into supported decision making for people with disability and older people. So there are many opportunities for us as professionals to bring our professional insights into shaping what governments decide to do with laws. So that was my pitch there. And also in the dementia capability project, lawyers did reflect on what they could do to improve wellbeing in the profession. So happily that has been a growing area of focus as well. All right. So just mindful of the time. So we do have some time for any further comments or questions.
(42:36):
Again, if anyone's interested in getting involved in some of the ongoing research, particularly our research that focuses on clients who are solo ageing, please do get in touch, connect with me on LinkedIn as well. I'm currently working with Dementia Australia to develop some additional training for professionals that gets into more detail on each one of these attributes of dementia capabilities. So that will be rolling out say in the next six months or so. So be really happy to hear from people if you're interested in that.
Tara (43:10):
Thank you, Nola. That was so insightful and it's just really wonderful to see the work being done in this area. We do have a few questions. So the first one is from Janice. So she has asked for your tips or recommendations when we are working or we have got a support person present in our state planning meetings and interactions, but we also as lawyers are aware of the risk that having them involved can create arguments of undue influence or they are a de facto decision maker. Do you have any tips on how we can balance that?
Nola (43:51):
Yeah. So the Law Council of Australia has guidelines on best practises for assessing client capacity as well as best practises for preventing abuse of clients. So those guidelines do discuss that exact situation where a support person is present. So I would recommend having a look at those guidelines, but again, the obligation is to understand who your client is. So it is the individual person who may be the individual with the diagnosis, not the support person. So to ensure that again, that the communication is focused on the individual who is your client, a number of lawyers in the projects we've done, they do have a practise of trying to see the client separately without the support person just to confirm in private setting that the client is expressing their own wishes and having some assurance that there isn't a situation of undue influence in those circumstances.
(44:54):
There can be situations though where the person does feel most comfortable with their support person being present at all times. So then just the documentation, your observations about your interaction with the client, how you felt quite confident that the instructions were coming from the client, what the support person's role was, were they just helping the person organise some of their documents or maybe referring to some particular points in documents where they brought some documents to the consultation. So just illustrating, you were observing and documenting that it really was a supportive role and not that person interjecting themselves in and trying to dictate the instructions that are given.
Tara (45:35):
Thank you. And thanks, Janice. It is a tough or a fine line that you have to sort of navigate on the spot. Stevens asked a question and I hope I'm not getting this wrong, Steven. I think Steven is a financial advisor, but he has asked, "What guidance do you have for him?" He's pretty sure his client is living with dementia, but they are in denial about seeking a formal medical diagnosis or refusing to accept the diagnosis.
Nola (46:05):
Yeah. And I did hear some of those experiences in the project on, well, both projects that we did and it may be the person has a diagnosis, but again, they might be in denial as Steven writes. So in that instance, what matters is what the client's capacity, what they can do. So you as the professional advisor, you may be aware of the documented diagnosis. So that's an important factor for you to be aware of. But when engaging with the client and trying to get their instructions, work with them through their planning and options, regardless of the diagnosis, you need to be assured that they've got the capacity to understand and make particular decisions. So their acceptance of refusal in a sense isn't really relevant to that core question. So whether or not they accept the diagnosis, if you feel that they do have the capacity to give instructions on particular matters, then that's fine.
(47:05):
If you feel that you've got questions around the capacity and you might want a referral for some further assessment of capacity into relation to making the will or whatever the decision is, then yes, you might run into the situation where the client is refusing to go off to another clinical assessment. So again, it would come back then to your professional obligation that you feel they have capacity. So where if you feel that you don't have confidence in their capacity for that particular decision, then you would need to ensure that you're not acting in those circumstances and you deal with that appropriately. And those kinds of situations are covered in some of the capacity guidelines as well.
Tara (47:48):
So we have just one more question if we can sneak it in. And Zahir, I'm just going to piggyback a bit of combining Steven's question with Zahir. So Zahir is sort of acknowledging back when about like 15, 20 years ago when I started out as a lawyer in estate planning, the sort of general practise or at least what I was taught was, "Oh, if you're not sure or if they're quite old, get a doctor's certificate and put that on your file and off you go. " And the doctor would pretty much do the mini mental exam and thumbs up or thumbs down. Can you comment on how things have evolved from there?
Nola (48:27):
Yes. Well, yes, fortunately there have been some improvements, but I still hear those exact same stories of the very cursory assessment, so- called assessment from a medical professional that doesn't pay any attention to the particular legal decision the person wants to make. So a couple of things there I have heard in this work that some lawyers do have a practise that where a client is say 70 or older, that they would automatically ask that that person goes and sees a doctor and gets some kind of medical confirmation of their capacity. I do have some concerns around that practise. It is inherently a kind of age discrimination. So you're asking a client just by virtue of being 70 or older to go and do something that you wouldn't ask a 50-year-old client to do. So it does kind of reinforce a focus on deficit or assumptions of lack of capacity for people in a particular age group.
(49:25):
So I think it's a bit problematic from that perspective. I do understand however, why some advisors or professionals might want to have that evidence on their file. So if the client is happy enough with that process and taking the time or paying the extra money to do that, then that can be a process that you and the client agree to. And then the letter that would go to the health professional who's going to do the assessment does need to clearly lay out what the client is seeking to do. So the kinds of legal documents, what the legal tests around capacity are. So the New South Wales Law Society and their elder law resources has some good sample letters and guidance on how to write an effective letter to the health professional. So that is a key step so that you are enabling that health professional to write a letter back to you that will address the salient points for your legal assessment of the person's capacity for those particular decisions.
