Elder Law
How can we help with your Elder Law issue?
If you or someone close to you wishes to prepare for or has already lost capacity to make decisions, is vulnerable to or experiencing financial exploitation or is considering accommodation in a retirement village or nursing home, we can provide advice and guidance on how best to proceed.
We can assist you, a family member, or a friend, with:
- Preparing powers of attorney and enduring guardianship documents;
- Applications for a guardianship and/or financial management order;
- Applications for review of guardianship and financial management orders and administrative decisions;
- Retirement village living and aged care accommodation advice;
- Issues of elder financial abuse including misappropriated funds or assets, loan and mortgage transactions;
- Proceedings to set aside a loan and mortgage transaction on the basis of lack of capacity, undue influence and/or unconscionability/unfairness;
- Proceedings involving or alleging breach of fiduciary duty;
- Issues concerning capacity.
Getting Help to Manage your Affairs
We can all take steps to simplify the management of our financial affairs and predetermine the type of health care we are comfortable with as we age.
A Power of Attorney enables you to appoint a trusted person (your attorney) to manage certain legal and financial matters on your behalf. The power of attorney may specify that your attorney only carry out certain tasks and can be limited for a set period of time (for example, while you are overseas).
An Enduring Power of Attorney comes into effect if you lose capacity and allows your attorney to make legal and financial decisions for you indefinitely, while you are alive. An enduring power of attorney can be revoked (cancelled) after you make it, but not once you lose capacity.
An Appointment of Enduring Guardian appoints somebody to make certain health and lifestyle choices on your behalf if you are incapacitated.
These documents provide assurance that somebody you trust is authorised to help manage your affairs and make certain health decisions that align with your values when you are unable to. They can be tailored to suit your needs and wishes, with certain limitations placed as a safeguard. We can work with you and explain the effect of these documents, so you can decide what is best in your circumstances.
Although the law requires your attorney and guardian to act in your best interests, it is important that you choose somebody you trust and with whom you are confident will uphold your values and be capable of fulfilling their role. Read more about choosing an attorney and guardian.
Financial Management Orders
A financial management order is an order made by a court or tribunal for the appointment of a third party to manage your financial affairs. It is only made if:
- you have lost capacity to manage your finances or are vulnerable to exploitation and you have not appointed an attorney under an enduring power of attorney;
- there is a concern that the person you appointed under an enduring power of attorney has mismanaged your finances or is not managing your finances in your best interests after you have lost capacity to manage your finances.
Where the court or tribunal has appointed the NSW Trustee and Guardian to manage your finances, you are under its direct management. If someone other than the NSW Trustee and Guardian is appointed to manage your finances, you are under private management and that person (or institution) manages your finances under the supervision of the NSW Trustee and Guardian.
Guardianship Orders
A guardianship order is an order made by the Supreme Court or the Guardianship Division of the NSW Civil and Administrative Tribunal for the appointment of a third party to make decisions about where you will live and what medical or dental treatment you will receive. A guardianship order is only made:
- if you lose capacity to make lifestyle decisions without appointing an enduring guardian; or
- if you have appointed an enduring guardian but there is a concern that the person you have appointed is not making decisions in your best interests
A guardianship order may not be made or renewed if there are no significant lifestyle decisions that need to be made.
Usually, a family member is appointed but ,where there is a real and irreconcilable conflict between family members or there is no suitable family member to take on the role, the Public Guardian will be appointed.
Elder Financial Abuse
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 access to 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.
Australia has helplines and access centres to assist those affected by elder abuse and tribunals or courts that deal with issues concerning allegations of abuse. If you are a victim of elder abuse you can speak with somebody you trust about your concerns, obtain advice from one of these centres, or contact a lawyer. If you suspect somebody you care about is a victim, you can raise your concerns with that person before suggesting a plan to obtain help and move forward.
For tips on how to minimise elder abuse, read our article on Preventing Elder Abuse
If you need assistance, contact in*********@es***.au or call 0451 530 877 for a no-obligation discussion and for expert legal advice.