by Katrina Brown | Nov 10, 2020 | Elder Law and Special Needs Advocacy – “Different-Ability Law”, Guardianship, Nautilus Law, Powers of Attorney and Estate Planning, Special Needs and Disability Planning, Succession Law
Queensland has updated the Capacity Assessment Guidelines which are to be applied in assessing an adult’s capacity to make decisions. The Guidelines assists practitioners, families and the public in testing the key criteria of capacity. The following summarises the critical sections of the Guidelines.
What is capacity?
Capacity is a legal term referring to the ability to exercise the decision-making process.
When an adult has capacity to make a certain decision, they are able to:
» understand and retain (even for a short while) the information relating to the decision
» understand the main choices available
» understand and weigh up the consequences of the choices
» communicate the decision
» make a decision freely and voluntarily.
It is the adult’s ability to exercise the decision-making process that is assessed when you carry out a capacity assessment.
It is important to remember that while an intellectual or cognitive impairment might impact on an
adult’s decision-making ability, it doesn’t necessarily mean they lack capacity. The same can be said
for mental illness, brain injury, dementia and age. Whether the adult makes a decision that others
might think is wrong, risky or immoral is also irrelevant.
The five principals in assessment of capacity:
- Always presume an adult has capacity: Under the law it is not up to the adult in question to prove they have capacity. It is presumed that every adult has capacity to make all decisions until proven otherwise. This presumption is not affected by any personal characteristics such as disability, mental illness or age (if the person is over 18 years of age). The responsibility is on the person seeking to challenge the adult’s decision-making capacity to prove the adult has impaired capacity. This can be done through a capacity assessment.
- Capacity is decision-specific and time-specific: Capacity is specific to the type of decision to be made and the time the decision is made. Someone might have capacity to make certain types of decisions (e.g. a personal decision about where to live) and not others (e.g. a financial decision about whether to sell their house).
- Provide the adult with the support and information they need to make and communicate decisions:
- Capacity can fluctuate: Capacity can change or fluctuate. An adult with a medical condition or illness may temporarily lose capacity, but then regain capacity at a later date. On the other hand, an adult with dementia or delirium, for example, might have capacity on some days (or during some parts of the day)and not others.
- Capacity can change with support: An adult’s capacity can improve depending on the support available to them. For this reason, an adult cannot be found to lack capacity until all practical steps have been taken to provide the support and information needed to make the decision.
- Assess the adult’s decision-making ability rather than the decision they make: An adult is free to make bad or poor decisions, provided they have the decision-making ability to make that decision. It is not the decision that is tested, but the capacity to make any decision.
- Respect the adult’s dignity and privacy: This process is perhaps the most invasive and overwhelming in the adult’s life. At all times, the adult is to be given dignity and privacy in the process and given full advantage of assistance to ensure that the adult’s decision-making capacity is truly impaired. Planning the capacity ahead of time and performing the assessment in circumstances comfortable to the adult are critical.
Tests of Capacity:
- General test of capacity —is applied when assessing capacity for decisions about personal,
health or financial matters. This test requires the adult to:
- understand the nature and effect of decisions about the matter;
- freely and voluntarily make decisions about the matter; and
- communicate the decision in some way.
- Test for making an enduring document—is applied when assessing capacity for making an
advance health directive or enduring power of attorney. This test requires the adult to:
- understand the nature and effect of the document. The law requires the adult to actually understand the powers the document gives and when it operates and how and when it can be cancelled or revoked; and
- make the document freely and voluntarily.
Our practitioners are frequently called to assist families in both the making of estate planning documents, and in effecting processes once loved ones lose capacity or there is a question of a loss of capacity. We are compassionate and understanding, and can assist in a wide range of services when this time comes.
If you or your family has a concern about capacity or wishes to make estate planning instruments, please do not hesitate to contact our scheduling director, Vicki Baker, on 61 7 5574 3560 or Vicki@nautiluslaw.com.au to arrange a meeting. We conduct meetings by Zoom or in person.
Thank you – Katrina Elizabeth Brown, Senior Lawyer (Katrina@nautiluslaw.com.au)
by Katrina Brown | May 8, 2014 | Elder Law and Special Needs Advocacy – “Different-Ability Law”, Special Needs and Disability Planning
Planning for a person with a disability takes careful thought and preparation. Luckily Nautilus Law can help you!
If you would like to enquire about planning for a person with a disability, we welcome you to contact Katrina Brown BA JD ATIA TEP SSA, Practice Director of Nautilus Law Group, is the Senior Lawyer overseeing the Commercial, Estate Planning and Tax Division of the Firm. Katrina can be reached by email at katrina@nautiluslaw.com.au or by calling our offices on (07) 5574 3560. We thank you for considering Nautilus Law Group.
by Katrina Brown | May 15, 2013 | Special Needs and Disability Planning, Succession Law
Whilst Australia has a widely recognised ageing population, the term ‘elder’ for the purposes of Elder Law is not defined at common law or in statute. In fact, the term ‘elder’ has no real legal meaning at all. Socially, the definition can also be difficult given the significant increase in average life span and the steadily increasing retirement age.
These obscurities aside, Elder Law is a recognised practice area that is rapidly developing within Australia. As such, it is important to understand who could be defined as an elder at law. To assist in defining the term ‘elder’, the Queensland Law Society has identified a number of State and Federal legislative provisions that are age-specific. The United Nations Population Fund Reports and general governmental policy documents on Australia’s ageing population can also be useful. These are outlined briefly below.
Pension Age
Firstly, regard can certainly be given to the pension age as provided by section 43 of the Social Security Act 1991 (Cth). For men, the pension age is 65 years and over whilst for women it is between the ages of 60 and 65, conditional on birth year. For women born before 1 July 1935 the pension age is 60 and for women born after 1 January 1949 it is 65. Notably, pension age is also five years earlier for veterans.
If you are of pension age, then Elder Law can apply to you. Upon retirement and access of the Aged Pension, there are significant decisions to be made that require forward planning. This includes potentially downsizing from your existing home and revising existing estate planning documents for your future.
Preservation Age
Secondly, regard can be given to a person’s superannuation age. This is known as ones preservation age. The preserved component of superannuation can generally only be accessed for people over the ages of 55 to 60. Again, this depends on the year of birth.
If you are of preservation age, Elder Law can certainly apply. Again, once reaching preservation age there are significant decisions to be made, such as asset protection, and indeed asset preservation. This can come within the ambit of Elder Law and lawyers and financial planners can offer considerable services in this area.
Elder Abuse as Serious Assault
Thirdly, an assault committed against a person aged 60 years and older constitutes a serious assault if committed against a person over 60 years of age as provided by section 340(1)(g) of the Criminal Code 1899 (Qld). This can relate specifically to Elder Abuse claims and the provision has significant implications for sentencing the offender.
Intergovernmental and Governmental Documents
Finally, given the international ageing population, there is also a plethora of governmental and intergovernmental policy documents and reports on ageing. Firstly, the United Nations has long recognised that there is an ageing population globally. In monitoring the ageing population, the Population Fund Reports generally assess the international ageing population from as low as 60 years of age and increasing incrementally to 80 years and over.
Secondly, the Australian Government has also produced extensive documentation on Australia’s ageing population, such as the Intergenerational Report. This Report projects that within the next 40 years the proportion of Australia’s population aged over 65 years will almost double to approximately 25 percent. This is in line generally with the Australian pension age criteria.
Conclusion
Overall, whilst relatively ambiguous there are a number legislative provisions, policy documents and reports that indicate that at approximately 60 years of age one could be considered an elder for the purposes of Elder Law. If you are nearing retirement age or are making decisions about your superannuation, Elder Law could be relevant and it is important to seek advice accordingly.
How can Nautilus assist?
Nautilus practices in Elder Law and has a team with significant experience in this area. If you would like more information on this area of law or have a specific concern, we welcome you to contact our offices on (07) 5574 3560 or email info@nautiluslaw.com.au. We thank you for considering Nautilus Law Group.
Submitted by: Katrina E. Brown BA JD ATIA TEP SSA
by Katrina Brown | Apr 23, 2013 | Special Needs and Disability Planning, Succession Law
Age is a natural and unstoppable process that obviously presents a wide variety of enhanced health-care needs. However, many fail to realise that age also brings a multitude of specific legal needs. This specifically surrounds issues of capacity, aged care and end of life decisions. Because of these specific legal needs, the practice area of Elder Law has developed. A very general outline of what Elder Law can comprise is outlined below. Each of these topics will be explored in greater detail in subsequent articles.
ESTATE PLANNING AND PROPER PREPARATION OF WILLS
Firstly, comprehensive estate planning through the preparation of a will or trust agreement is vital. A comprehensive estate plan will ensure that the elder’s wishes for the distribution of their estate are executed, whilst also ensuring that their assets are protected. This includes protection against challengers to the will and a myriad of potential taxation consequences. It is important that a will is drafted at a time when the elder has full capacity, and that the regularly updated to meet any changing circumstances.
RESPONDING TO SUPERANNUATION DISPUTES
Superannuation disputes have increased dramatically in recent years. Given Superannuation is often a primary source of income for elders, it is important that any disputes are resolved efficiently. There are two key instances of superannuation disputes. The first is a dispute between the superannuation fund and the elder over entitlements. The second relates to elder abuse which is discussed in more detail below. A person may persuade an elder to make a Binding Death Benefit Nomination for their superannuation benefit. This ensures the superannuation does not pass through the estate upon death but directly to the recipient. This may not be what the elder intended and can have a significant impact on the administration of the estate.
PROVIDING ADVICE ON AGED CARE ACCOMMODATION CONTRACTS
Elders must make many lifestyle decisions, be it simple downsizing from the family home to entering aged care facilities. Moving into aged care is a significant lifestyle decision and there are a number of factors to consider. Firstly, there are a number of living arrangements for the elderly, spanning from independent living, community living to assisted living. It is important that the right choice is made on what type of aged care accommodation is suitable. It is also important that this is planned for properly and that the elder’s family are aware of the elder’s wishes.
Secondly, the transition from the elder’s current home to accommodation involves a myriad of important issues. This is particularly due to the significant cost of attending aged care accommodation. It is important that both your personal interests and your estate are protected throughout this transition. As a result, legal and financial advice is integral.
CONTRACTUAL DISPUTES WITH VARIOUS SERVICE PROVIDERS
You may engage a significant number of service provides to assist you with your daily needs. Whilst it can often be overlooked, a number of disputes with service providers can be resolved through contract law. It is important when engaging a service provider that you are aware of the rights and obligations of each party to the contract. If a dispute arises, seeking advice from a lawyer is advisable.
APPOINTING ALTERNATE DECISION-MAKERS
Capacity is at the core of Elder Law. In Australia, there is a presumption of capacity for all persons over the age of 18, the age of majority. However, if capacity is questioned and this presumption is rebutted, the people important to the elder must rely on pre-prepared planning instruments to implement the elder’s wishes. There are a few key ways this can be achieved.
Firstly, an advanced health directive is a document that outlines what an elder intends if they become unable to make decisions during their lifetime. This often relates specifically to how an elder would like their health care needs met. However, including these details within enduring power of attorney documentation is an advisable alternative.
The appointment of a power of attorney or an enduring power of attorney is a legal document that authorises another person to act on the elder’s behalf and assists them with financial and health-care decisions. Actively appointing a power of attorney ensures that a trusted person or a trustee organisation can make these decisions on the elder’s behalf. Importantly, this appointment can only occur when the elder has capacity. It is therefore important to ensure that steps are actively taken to make any appointments.
RESPONDING TO CLAIMS OF ELDER DISCRIMINATION OR ELDER ABUSE
Elder discrimination and elder abuse are delicate topics that many people find difficult to discuss. However, it is important to that people know their rights as an elder.
Firstly, instances of discrimination may occur against an elder. Australia’s anti-discrimination regime is governed by a broad range of legislation, including the Age Discrimination Act 2004, the Australian Human Rights Commission Act 1986, the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984. It is important that all instances of discrimination are reported so that there can be recourse under the relevant legislation. To do this, legal assistance and the assistance of an advocate is often required to ensure an elder’s rights are protected.
Secondly, elder abuse occurs when there is a relationship of trust between a person and an elder, and this trust is compromised, resulting in harm to the elder. This harm could be physical, emotional or financial and could be perpetrated by a family member or friend, a service provider, or otherwise. When elder abuse occurs, public liability personal injury claims in Queensland is governed by the Personal Injuries Proceedings Act 2002 and the Civil Liability Act 2003. Criminal liability may also be apparent if the elder is a victim of a crime. The regime that governs criminal liability includes the Criminal Code Act 1899 and the Penalties and Sentences Act 1992 (Qld).
It is vital that when abuse occurs, or is suspected by a friend or family member, that it is reported and the appropriate remedies are pursued. In this instance it is important to remember that all accredited aged care providers must have an internal complaints process pursuant to the Aged Care Act 1997 (Cth). Assistance from a lawyer and an advocate is often vital.
HOW CAN NAUTILUS ASSIST?
Nautilus specialises in Elder Law and has a team with significant experience in this area. If you would like more information on this area of law or have a specific concern, we welcome you to contact our offices on (07) 5574 3560 or email info@nautiluslaw.com.au. We thank you for considering Nautilus Law Group.
Submitted by: Katrina E. Brown BA JD ATIA TEP SSA
by Katrina Brown | Feb 1, 2013 | Insights from the Surfboard, Special Needs and Disability Planning
Nautilus Law Group is a proud sponsor of Autism Gold Coast.
Our Practice Director, Katrina, works with families and service providers to provide mentoring in adaptive behaviours and parenting styles, implementation of dietary changes, and education and employment advocacy. Katrina also advises government and business sectors on various issues specific to protections, programs and provisions for people with autism spectrum disorder. She has also presented on legal issues specific to estate planning, Centrelink planning, and social integration of people on the autism spectrum disorder.
As a mother of two children who are on the spectrum, Katrina has experienced the heartbreak of schooling rejection, criticisms from medical providers who were not open to alternative therapies, frustration from judgment and refusal to integrate by those who do not understand the different-abilities offered by those with autism spectrum disorder and the physical and emotional exhaustion associated with protecting children with special needs from themselves and others.
Katrina advocates for the “even playing field” of all people, especially those with the different-abilities of autism spectrum disorder. She is a recognised leader in estate and personal planning for families with loved ones effected by autism spectrum disorder, for which she advocates integration of wealth planning, insurance coverage, family and friend support circles and development of the coping skills of each member of the family to change (including disability, changes in employment/stages of life of key persons and the death of key persons).
Katrina’s recommended sites for those who are effected by autism spectrum disorder, or a friend, family or service provider of such persons:
AGC is based on the Gold Coast, Queensland. This organisation offers a wide range of support services to families and service providers to those who are effected by autism spectrum disorder.
Mindd is an exceptional resource for dietary interventions in Australia for not only those effected by autism spectrum disorder, but any person who experiences difficulties with attention, allergies, Alzheimer’s, mental illness and arthritis, to name a few. Katrina swears personally to the integrity and merit of the lessons and resources available through the Mindd Foundation.
Parent to Parent is a QQueenslandbased advocacy group which provides a network of support services for families with special needs support. Katrina consults with the Parent to Parent team on various matters, and highly recommends the group to those who are new to education, workplace and personal advocacy.
Submitted by Katrina Brown BA JD ATIA TEP SSA, Senior Commercial and Property Lawyer, Nautilus Law Group
by Katrina Brown | Jan 15, 2013 | Special Needs and Disability Planning, Succession Law
Testators or will-makers can be at significant risk of testamentary undue influence when drafting a Will, applying a codicil to a Will or otherwise amending a Will. Whilst undue influence is certainly not specific to Elder Law, the risk of an elder being subject to undue influence is increasingly apparent. This could be due to the elder being subject to infirmity, fluctuating capacity, loneliness or a significant reliance on others for daily care and wellbeing.
As a result, it is vital to ensure that any significant changes to an existing Will or a significantly skewed distribution of assets are indeed the wishes of the testator and not the product of coercion. If coercion is evidenced, the Will may be challenged. This will have significant implications for the administration of the Estate.
UNDERSTANDING TESTAMENTARY UNDUE INFLUENCE
Testamentary undue influence involves the coercion of the testator or Will-maker to draft a Will in a way that the testator did not intend. For instance, this coercion could result in a significant portion of the Estate, a specific heirloom item or another item of value being left to a certain beneficiary contrary to the true intention of the testator.
This is certainly not a new concern. The Courts have refused to grant probate of a Will that was drafted under coercion as early as 1634 in the case of Hacker v Newborn (1634) Sty 427. There has been a plethora of case law on this topic since. What is an emerging concern however is the significant risk to elders specifically. It is therefore important to understand what constitutes testamentary undue influence.
WHAT CONSTITUTES COERCION?
The test for whether undue influence has been exercised on a testator or will-maker remains coercion, as defined by the seminal case of Boyse v Rossborough (1857) 10 ER 1192. Contemporary Australian case law, such as the case of Nicholson v Knaggs [2009] VSC 64, reaffirm this principle.
In order to render a Will void, there are a number of factors that must be satisfied to demonstrate undue influence. Firstly, this influence may be persuasion, moral pressure or coercion. The case of Hall v Hall [1868] LR 1 P&D 481 outlines what constitutes coercion specifically. In brief, coercion entails pressure of any kind such as “importunity or threats” as well as “moral command asserted and yielded to for the sake of peace and quiet, or of escaping distress of mind or social discomfort”. An elder could certainly be subjected to such coercion by any number of individuals. Secondly, the effect of this influence must produce a provision in the testator’s Will that is contrary to their true and independent intention. This too is unfortunately feasible.
CHALLENGING A WILL ON THE GROUNDS OF TESTAMENTARY UNDUE INFLUENCE
Given the risk, there is an increasing number of family members and friends wishing to plead undue influence in challenging a Will. However, it is important to note that the evidentiary burden for establishing testamentary undue influence is significant.
Firstly, the burden of proof for establishing testamentary undue influence lies with the party making the claim. Secondly, the requisite evidence of coercion cannot be presumed. As a result, it is insufficient to establish that an individual had the potential or the opportunity to unduly influence or coerce an elder with regard to their Will. In fact, undue influence must be proved directly and the influence must be related directly to the Will itself. Whilst distinguished from more general instances of coercion, the Court will certainly assess the evidence as a whole.
Satisfying this high evidentiary burden is frequently problematic for challengers. As a result, there have been very limited circumstances where undue influence is pleaded solely. Undue influence is often pleaded as a secondary claim in conjunction with pleadings relating to testamentary capacity, fraud or forgery. As such, it is again imperative to ensure that all Planning Instruments are drafted and executed whilst the testator has full capacity.
MINIMISING THE RISK
There are a number of ways to limit the risk of testamentary undue influence. Firstly, it is vital to obtain independent legal and financial advice when drafting a Will and other Estate Planning Instruments. This advice should be sought whilst capacity is assured. Planning instruments may then be subsequently reviewed as needed. Your lawyer will draft your Will in a way that is as you intend with regard to the best interests of those you wish to nominate as beneficiaries. To do this, your lawyer will need to be fully aware of your circumstances and your interests.
Also, if there are significant changes to the existing distribution of assets, it is important for your lawyer to ascertain why this is the case and whether such changes are in consideration of recent circumstances. Such circumstances could be a desire to compensate a friend or family member for significant care provided to you, the testator, late in your life. If this is the case, it is important that your Executors are made aware of this. This could be through drafting a Statutory Declaration outlining your intentions.
HOW CAN NAUTILUS ASSIST?
Nautilus practices in Elder Law and has a team with significant experience in this area. If you would like more information on this area of law or have a specific concern, please do not hesitate to contact us and discuss this further. For all questions or further information, please contact Katrina by email at katrina@nautiluslaw.com.au or by calling our offices on (07) 5574 3560.
