Elder Law
Elder law focuses on the specific legal issues and challenges faced by the elderly. We can help you as you approach this often-vulnerable stage of life, or we can help someone you care about. We can also guide you on appointing a trusted person to help manage your affairs as you age, or to make certain decisions for you if you lose capacity to make those decisions yourself.
Powers of Attorney
A power of attorney is a legal document that enables you to appoint a trusted person (your attorney) to make certain financial and legal decisions on your behalf while you are still alive. You may want a power of attorney to operate for a temporary period, for example, while you are overseas or if you are in hospital and are not able to physically manage your own affairs.
Alternatively, you may want to prepare an enduring power of attorney in case you lose capacity and are not able to make your own decisions. A person who is worried about losing capacity as they grow older may, for instance, choose to nominate their partner, adult child, or friend to make certain legal and financial decisions.
If you do not make an enduring power of attorney and lose capacity to make your own decisions, there will be nobody with legal authority to manage your property and financial affairs, for example, your family may have difficulty accessing bank accounts to pay your bills. In such cases, a relative or somebody else may need to apply to have a financial manager appointed through the New South Wales Civil and Administrative Tribunal.
An Enduring Power of Attorney serves a different purpose to a will however it is of equal importance to a will. We always advise clients to make or review an enduring power of attorney at the same time as making or updating their will.
Appointment of Enduring Guardian
An enduring guardian is a person appointed to make certain lifestyle and health decisions on your behalf when you are not capable of making them for yourself. The appointment of enduring guardian only comes into effect if you lose capacity.
We advise clients to consider whether they need to make an Appointment of Enduring Guardian at the same time as they are making or updating their wills. An Appointment of Enduring Guardian is particularly important for clients who are advanced in age, single persons or clients who may have an illness.
Advance Care Directive
An Advance Care Directive is advisable for clients who are advanced in age or who have a terminal illness. An Advance Care Directive provides direction to the guardian in relation to treatment and palliative care that the client wishes to receive from their health care providers. The Advance Care Directive is prepared in consultation with the client’s medical GP.
Retirement Living
Retirement villages and lifestyle resorts take away some of the worries of home maintenance and can provide physical security as we age. In many cases, the villages will also provide personal care and assistance to older persons with the potential to transition to higher care facilities within the resort as the need arises.
Typically, residents in a retirement village do not purchase title to their accommodation nor do they rent in the same way as homes are rented in the general community. Rather, the resident purchases a right to the benefit of living in the retirement village.
It is essential for you to understand what you are agreeing to when you move into a retirement village. Village management must provide you with a disclosure statement, residence contract and other documents that will inform you of your rights and responsibilities. A focus on the costs to enter and to exit the arrangement should be considered before signing an agreement and professional advice may be necessary to ensure that the real cost of both entry and exit are understood.
If you are considering retirement living, we can assist with reviewing and explaining the complex documentation and disclosure material provided by retirement facility operators. We are familiar with some of the different accommodation options in the local area and can provide useful information about the facilities and services available.
Residential Aged Care
Due to physical incapacity or cognitive impairment it may be necessary for clients or family members of clients to make the decision for our client to move to residential aged care. Each residential aged care provider has an agreement which they will require the resident (or the attorney for the resident acting under Power of Attorney) to enter into. It can be difficult for clients and their family to make a decision in relation to which aged care provider is best for them and financial arrangements around the entry into aged care. We provide our clients with practical and legal advice in this area including resources for information to choose the right aged care provider and facility, advice in relation to the contract and we can refer clients and their attorneys to financial planners who can advise in relation to the options for payment for the place so that the best financial outcome is achieved for the client.
Elder Abuse
Elder abuse is the exploitation or neglect of an older person. Importantly, elder abuse often occurs in relationships where the elder person should be able to trust the person who is abusing them. Not all elder abuse causes physical harm. In fact, financial abuse is one of the most common forms of abuse of an elder person.
Financial abuse occurs when a person illegally and improperly uses an elderly person’s financial resources or property for their own or a third party’s benefit. Examples include:
- Misusing a power of attorney and/or making unauthorised withdrawals from a bank account through an ATM or an internet transfer
- Depriving an elderly person from accessing their own funds or property
- Manipulating or coercing an elderly person into gifting or loaning money or transferring assets
- Putting a person under duress to include certain provisions in a will or to change an existing will
- Pressuring a person to give a power of attorney or appointment of enduring guardian
A lawyer can help if you are a victim of elder abuse, or suspect somebody you care about is a victim, in which case you can raise your concerns with that person before suggesting a plan to get help and move forward. A lawyer can help prevent further exploitation of the elder person and, if relevant, recover assets that have been misappropriated.
If you need assistance and advice in relation to Elder Law, contact one of our lawyers at [email protected] or call 02 9949 4022 for expert legal advice.