An elder person in rich in life and has earned the authority to command respect. We appreciate the greater challenges facing our elder persons as they live longer and require more substantial levels of care.
As Australia’s population is ageing, there is an expanding need for legal services tailored specifically to the issues affecting the elder community and their loved ones, which has seen a growth in Elder Law services. Elder Law focuses on the rights, responsibilities and legal issues that concern or predominantly affect, elder or senior people.
What is Elder Law?
While Wills and Estates might come to mind, the field of Elder Law is about much more.
Around the age of 55 years and beyond, these are some of the other issues and decisions that an experienced Elder Lawyer can help you with:
- downsizing from the family home into new accommodation
- transitioning to retirement
- moving into a manufactured home, retirement village or aged care facility
- future medical care arrangements
- making decisions about financial affairs, now and into the future
- protecting yourself from elder abuse.
Retirement Villages and Home Parks
For many older people, “over 55” housing options are a great solution.
Mowing, maintenance and more can be eliminated or made so much easier – and then there’s the social benefits. It’s no wonder manufactured homes and retirement villages are cropping up all over the Far North Coast and beyond.
However, it’s important to get the right advice to make this transition work for you – both now and into the future.
Our team at Castrikum Adams Legal have extensive experience stepping people through the transition to this easier way of life. They’ll explain (in clear, easy-to-understand terms) the impact of the complex contracts that are part of the process.
Unravelling the complexity and protecting your future
Contracts for retirement villages and home parks are not only complex but subject to different pieces of state and federal legislation. For example, in NSW retirement villages are governed by the Retirement Villages Act. This added layer of legalities can make contracts tricky to understand without the right professional expertise.
From our experience, these contracts can also contain ongoing costs or exit fees that people do not realise are part of the deal.
To avoid any unpleasant surprises and protect your interests and way of life, speak to one of our experienced lawyers before you sign on the dotted line.
How we can help
We have extensive experience assisting with the transition to retirement villages and home parks, including:
- choosing a village or park
- advice when entering a contract
- issues with management when living in a village or park
- rights and obligations when living in a village or park
- advice when leaving a village or park
- advice for executors.
Granny Flats, Family Arrangements & Family Loans
Granny flats and other shared family living arrangements may be an attractive and practical option as you move into a new life stage – but the convenience comes with legal and financial risks.
Why you need advice before building a granny flat or sharing living arrangements
Perhaps you are looking at building a granny flat in your adult child’s backyard? Or you are planning to pool resources to buy a property? Or perhaps you are considering passing your property on to a loved one provided you can continue to live in part of the house for the rest of your life?
You might be looking forward to the care and love that these arrangements promise, however in all of these scenarios you need a “granny flat agreement” to protect your finances and your future.
Getting advice, and entering into a “granny flat agreement” can address the issues that may crop up:
- what happens if you have a “fallout” down the track?
- how will it affect your pension?
- are there capital gains tax implications?
- what happens if your child gets into financial troubles and has to sell?
- what happens if your child’s marriage falls apart or they become ill?
- how might this affect your will?
Protecting your future
Unfortunately, the family and legal issues outlined above can and do come up. We just can’t predict the future.
We can, however, help you protect your future and reduce the risk that you’ll find yourself without a home and without other options.
How we can help
We have extensive experience assisting with granny flat agreements and other shared living arrangements, including:
- advice on family agreements and living arrangements
- granny flat agreements and documenting arrangements
- pension and estate planning advice
- documenting family loans
- dealing with family disputes and mediation.
Capacity, in a legal sense, is your ability to make considered, independent decisions about matters affecting your life. As you grow older, the risk of losing some or all of this “capacity” increases – and it’s important to plan accordingly.
Capacity and making decisions into the future
When making decisions about your money, assets and where you live, it’s important that you have “capacity” – the ability to make such decisions and clearly communicate your decisions.
When signing a legal contract, your lawyer will always ensure you have capacity to enter the agreement – regardless of your age.
While everyone is at risk of losing capacity, this can become a particular problem as we age.
Sometimes an older person may have capacity to make smaller decisions about daily activities such as what to buy at the supermarket. However, a condition like dementia might compromise their ability to make bigger decisions involving money or legal contracts.
Capacity documents: making decisions about capacity now
Capacity documents help us prepare for these scenarios associated with cognitive decline.
At Castrikum Adams Legal, we can talk you through the various scenarios surrounding loss of capacity and make sure you have all the legal documents in place to face things on your terms – should you end up facing one of those scenarios.
How we can help
- We can advise on dementia and other incapacity issues and assist in preparing the full range of capacity documents, including:
- enduring powers of attorney
- enduring guardians
- advanced care directives
- guardianship and financial management applications.
Capacity Disputes & NCAT proceedings
When an older person’s capacity to make life and legal decisions is questioned, family disputes can, sadly, arise.
At Castrikum Adams Legal, we can help you to resolve these disputes and move forward.
Decisions and disputes about capacity
Sometimes, concern about an elderly parent’s capacity to make decisions can turn into a family argument – and quickly escalate. High emotion, stress, pre-existing relationship issues and legal complexity can make these matters extremely difficult to resolve.
If you are concerned about capacity issues or discussions about an older person’s capacity, or you are unable to agree with siblings on a decision about a parent, we recommend speaking to us at the earliest opportunity.
We are here to help in both Elder Law and dispute resolution. Our approach is to engage a mediator before things escalate further, and we encourage a controlled flow of communication between parties. Our aim is always to achieve a happier outcome for everyone.
NCAT proceedings for capacity disputes
In some circumstances, the assistance of the Guardianship Division of the NSW Civil & Administrative Tribunal is required to move forward. Our lawyers can assist with these applications and proceedings.
This division determines applications about adults who do not have the capacity to make their own decisions and has the power to appoint a substitute decision-maker. It can determine applications about personal or lifestyle decisions, appoint a financial manager, provide consent for medical treatment, and review an enduring power of attorney or guardianship appointment.
How we can help
We regularly help clients resolve disputes around capacity issues and find peace of mind. We provide NCAT advice and representation.
In particular, we can assist with:
- advice and representation to a person whose capacity has been challenged
- advice and representation to family members and friends who have concerns about a person’s capacity
- seeking a review of an appointment of attorney or guardian
- seeking a review of tribunal decisions.
Elder abuse has been defined by the World Health Organisation as ‘a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person’.
Elder abuse can take various forms, including: financial, physical, psychological, emotional and sexual abuse, or neglect. No older person should be subjected to any form of abuse.
How we can help?
Situations we can help with include:
- You or your family member has gifted their home or money in exchange for promises of accommodation or care – and the situation has broken down
- An Attorney has misused or is misusing their powers under an Enduring Power of Attorney
- You or your senior family member is being exploited by another family member or other person and financial and emotional abuse is occurring
- A family dispute has arisen over who should make decisions for an elderly person who has lost capacity and the elderly person is suffering as a result
- A third party is trying to ingratiate themselves into the lives of a loved one, for example, by marriage, for the purpose of financial gain.
We offer advice and can provide you with full representation, if necessary.
Appropriate legal action may be necessary
Castrikum Adams Legal have assisted many people who have been affected by elder abuse or whose aged family member has been victimised.
Action to address systematic and ongoing financial abuse may require removing an Attorney who has been misusing an Enduring Power of Attorney.
We know which action to take to stop the abuse and to try to recover property or money.
The importance of stopping the abuse
In many cases, a failure to stop elder abuse will lead to an elderly person facing, not only emotional distress, but a poorer quality of life in their later years.
Elder abuse occurs in close family relationships
Elder abuse involves harmful behaviour by a trusted family member. An important aspect of inter-generational elder abuse is the relationship between the older person and the perpetrator, who is usually an adult son or daughter. The nature of elder abuse can take a substantial toll on an older person’s emotional well-being and make it difficult for them to take action.
Intervening for a more positive outcome
Addressing elder abuse may be complicated when important relationships are at stake. We often see an ambivalence toward acting against perpetrators. Yet many positive outcomes are achieved as a result of legal and advocacy services.
A range of interventions may be required to address a situation of elder abuse. Each case is unique. Non-legal intervention may include the need for therapeutic interventions (particularly for perpetrators), mediation services, accommodation and financial assistance. Mediation is a promising alternative to the adversarial legal system.
Common factors in cases of elder abuse
We often see a sense of frustration on behalf of the older person after years of conflict and abuse. Inter-generational elder abuse is never straightforward, and every older person subjected to it will report a different situation. Control and dominance may be one of the reasons for the abusive behaviour.
Communication difficulties linked to continuation of elder abuse
Strained communication, or a lack of open discussion, is often reported. Some people avoid communicating about the issue for fear of escalating matters. The extent to which an older person is affected, the supports they draw on and their ability to cope will all influence their experience.
How can we help you?
At Castrikum Adams Legal, we can assist you to regain control of your or your senior family member’s affairs by taking the appropriate legal action.
When should you talk to us?
It is important to obtain appropriate legal advice at the earliest opportunity.
We might also recommend the involvement of a specialist solicitor, a private social worker specialising in elder care, or a financial planner.
How to start?
You are welcome to call us for a confidential chat. Or simply Contact us on our Contact page.
Tips to Avoid Elder Abuse
- Do not give your PIN or debit or credit card to anyone
- Do not allow anyone to bank online for you
- Get independent legal advice before loaning money to family; moving in with family or allowing family to move in with you
- Talk to your lawyer alone and NOT in the company of family members
- Talk to Centrelink before loaning money, gifting money or moving in with family as your pension could be affected
- Engage in estate planning. Review your Will, Enduring Power of Attorney and Enduring Guardian at least every 3 years
- Appoint more than one attorney to act jointly
- Do not sign anything unless you understand what you are signing
- Join a group, keep healthy and maintain a support network
- If you have concerns, talk to someone you trust – such as your GP, police or your lawyer. Financial abuse is a form of family violence.