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
