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'Til death - or an EPA - us do part

By Angela Smith - posted Friday, 4 January 2013


Notwithstanding that we live in a world of no fault divorce, most take the "for better for worse; for richer for poorer; in sickness and in health; as long as we both shall live" marriage vows seriously – and especially older people.

And, few contemplate that anyone else should has the power to "put asunder" i.e. overrule our inviolable commitment - and divorce us against our will!?! Indeed, how many have already unwittingly delegated that power to children – or somebody else's children.

For those who consider marriage sacrosanct, a recent High Court Appeal case is cause for concern. So too should be recent amendments to the Inheritance Act, which extend the definition of natural heirs to step-children and other aspiring beneficiaries.

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In the days before the Family Court, blended families, superannuation, increased life expectancy and the 'me' generation, few people made it to retirement, and those that did, lived but a few years. Homes were modest, and funerals routinely wiped out meagre life savings. Hence, most natural (or unnatural) heirs inherited nothing.

Nowadays, a person approaching retirement is generally much wealthier and healthier than in the past, and they can expect to spend as many (or more) years out of the paid workforce as in it. Moreover, they are expected to self-fund their own retirement with superannuation - and to be the backbone of the volunteer workforce.

Because of the convoluted nature of 'privatised' free enterprise superannuation, most rely on professional advisers. And, as has been witnessed in recent years, it is not until the nest egg 'disappears' that victims discover they have been fleeced (compliments of a woefully under regulated industry). Additionally, those in second time around marriages will have much less squirrelled away – compliments of earlier Family Court property settlements - while those of means will have optimised the transfer of family assets to their 'natural' heirs, through the establishment of Family Trusts and the like.

Also in years gone by, very few made it to the grand old age of senility, which requiring them to have their affairs looked after by an impartial – and government funded – Public Trustee. Nowadays, our politicians have outsourced such tasks to informal (unpaid) administrators and guardians. And, with medical advances having controlled the primary killers of retirees (heart disease and cancer), many more will succumb to dementia.

Integral to retirement planning, most legal and financial advisers have strongly encouraged retirees "before losing it" to assign an informal administrator and guardian – via an Enduring Power of Attorney, Enduring Power of Guardianship and an Advanced Health Directive (if not set up a Family Trust to prevent the taxman or nursing home pillaging the estate). And, retirees are routinely discouraged from nominating their partner as attorney or guardian because (usually of a similar age) the partner is just as likely to develop dementia themselves.

Hence, those informal appointees of EPAs, EPGs and AHDs are – more often than not - junior relatives i.e. unqualified and 'unremunerated', but with a vested interest in their inheritance. Although retirees are advised to carefully consider who they will entrust to do the task (because their activities will not be scrutinised), nominators don't get to realise who can't be trusted until after their trust has been betrayed. And, it is often not the 'natural' relative who is the Judas; the instigator is often the in-law partner of the son/daughter - or nephew/niece of an affluent PANK (Professional Aunt with No Kids).

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Retirees are not just at greater risk of developing dementia, but - as mentioned - may have been in more than one relationship, resulting in the once rare step-family being more commonplace. And, as anybody who has ever been in (or witnessed) such blendings, there is elevated sibling and spousal rivalry, jealousy and envy. Not only can there be rivalry among children who may have to consider sharing their perceived inheritance with someone else's kids, but also animosity toward a new step-parent who has the potential to put them all further down the inheritance pecking order. Introduce the likelihood that a new wife may be decades younger than her new partner, and all of a sudden that inheritance isn't likely to be inherited for decades – if ever.

In that regard, WA has only recently decided to change its Inheritance Act to 'bring itself into line' with other states, and to give the same legal status to step-children as to biological children. But, it's a bit ironical that WA step-children are to be treated the same as biological children when, in a recent case in the Family Court in Queensland, the Magistrate made a ruling that step children were not to call their step parents "mum" or "dad" - purportedly "to protect and recognise the unique positions of the mother and father, positions that cannot be filled by step-parents."

Surely, if it is inequitable to treat step-parents the same as biological parents (under the Family Court Act) then it is inequitable to treat step-children the same as biological children (under the Inheritance Act) - especially in a country that boasts equality of opportunity and egalitarianism?

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About the Author

Angela Smith is a former social welfare bureaucrat, academic and scientist who has taken sabbatical so as to provide full time care for her terminally ill partner. She is a passionate social justice campaigner for especially mentally disabled elderly.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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