Elder Law

Elder law is a specialised area of law focusing on the legal issues that affect older adults and their families. It encompasses a range of matters, including:

Powers of attorney
Guardianship appointments
Advance medical directives
Retirement village agreements
Nursing home and home care agreements
Disputes concerning the capacity to make decisions and sign documents
Challenging Wills
Elder abuse

We can assist in all these areas to help ensure the protection, well-being, and financial security of elderly individuals.

Powers of Attorney

A power of attorney is a legal document that gives authority to another person (the attorney) to manage specific legal and financial matters on behalf of the person granting the authority (the principal). There are two types of powers of attorney commonly used in New South Wales – general powers of attorney and enduring powers of attorney.

General powers of attorney cease to have effect if the principal loses capacity, whereas enduring powers of attorney continue to be valid in such circumstances.

Knowing you have an attorney to act for you when you need it can give you peace of mind, but it is important to carefully consider who you appoint as your attorney and to clearly express your wishes and expectations. We can explain the various options so you can make an informed decision and have documents prepared that are tailored to your needs.

Guardianship Appointments

An appointment of enduring guardianship is a legal arrangement that allows an appointed person (the guardian) to make personal and lifestyle decisions on behalf of an individual (the principal) who is unable to make those decisions themselves due to incapacity. These decisions may relate to healthcare, accommodation, and other personal matters. An appointment of enduring guardianship may only be made by a principal who has capacity at the time of making the appointment. The enduring guardian must act in the best interests and according to the known wishes of the principal.

In the absence of an existing legal appointment, the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) has the power to appoint a guardian to make decisions on behalf of an incapable person regarding their health, accommodation, and financial affairs. The guardianship process involves an assessment of the individual’s capacity and a determination of their best interests.

Advance Care Planning

Advance care planning considers an individual’s wishes concerning their future healthcare needs. Directions can include the type of medical treatment you consent to or refuse, and your values and preferences to be considered regarding your future healthcare treatment. It is important to document directions about these matters now so that your wishes are respected if you later become seriously ill or incapacitated and you cannot convey these directions yourself.

Retirement Villages and Aged Care

Retirement village contracts are legally binding agreements that govern the rights and responsibilities of residents and facility providers. These contracts typically detail accommodation fees, the services provided, dispute resolution procedures, and termination provisions. Village providers must give prospective residents a disclosure statement and other documents informing them of their rights and responsibilities on entering such arrangements.

Entry into a retirement village does not result in an automatic entitlement to aged care services. Aged care is regulated and assessed under Commonwealth laws. Aged care services are government funded and potential recipients must first be assessed.

If you or a family member are considering retirement village living or aged care services, it is helpful to get legal and financial advice. Your professional team can review documents, explain the type of arrangements contemplated and help plan or restructure your affairs accordingly.

Challenging Wills

The validity of a Will may be challenged on various grounds, including if there are concerns about the mental capacity of the deceased at the time of making the Will. A challenge based on testamentary capacity questions the deceased’s mental competence to understand the nature and consequences of making a Will at the time of its creation. A Will may also be challenged if there is evidence of undue influence or pressure on the deceased to change the terms of the Will, or simply a failure to comply with the required legal formalities during the will-making process.

The first step in resolving such challenges is to obtain professional advice and guidance on the legal processes involved and the potential outcomes of pursuing legal action.

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. For instance, elder abuse can be perpetrated by a child or grandchild of an elder person, or by their career.

Not all elder abuse causes physical harm. In fact, financial abuse is one of the most common forms of abuse of an elder. Financial abuse occurs, for instance, when the elder person feels pressured or intimidated to gift money or property. An elder person may also be pressured or intimidated into providing their property as a guarantee on a loan. Financial abuse also occurs when there is direct theft of money or property through control of online bank accounts or possession of the elder’s credit card.

A lawyer can assist when elder abuse is suspected and can take steps to prevent further exploitation of the elder person.

If you need help, contact [email protected] or call 0401 513 190 for expert legal advice.