Elder Law

Elder Law (Legal issues relating to the Elderly)

Wills & Powers of Attorney

It is critically important to have in place Wills and Powers of Attorney as you get older.

Whilst you are still capable of understanding legal documents and signing legal documents Enduring Medical & Financial Powers of Attorney should be signed so that your loved ones are able to make requests and decisions on your behalf if you become incapacitated.

All adults need a Will especially the elderly, to ensure that the assets built up over a lifetime are distributed after your death in accordance with your wishes. The law is quite clear. If you do not have a Will, when you die, your assets will be divided in accordance with a strict government formula and not according to your wishes.

It is prudent to keep with your Will a list of all your assets and liabilities and advise your Executor where the list may be found eg:

  • Property – Title Particulars
  • Bank Accounts – Bank, Branch and Account Numbers
  • Insurance Policies – Insurance Company and Policy Number including Superannuation Policies & Life Insurance Policies
  • Shares, Debentures, Stock
  • Cash
  • Other Valuables

See our section on Wills & Estate Planning

Retirement Villages & Aged Care Facilities

There are many issues to navigate when deciding to purchase into a retirement village or enter an aged-care facility.

The are many features of Retirement Villages that make them more complicated than traditional forms of property, and the range of legislation that may be relevant can be very broad.

The legal structures that underpin a retirement village or aged-care facility can include a long-term lease, long-term licence, strata title, community title, company title, unit trust, manufactured home and conventional lease structures. All of this will be contained in an incredibly detailed legal document. Therefore you will require an experienced Property Lawyer to sift through the documentation in order to advise you of the main terms and conditions.

Q. key issues to identify before entering into a retirement village contract.

  1. Type of title holding
  2. Stamp duty
  3. GST
  4. Service charges and other administration fees
  5. Refurbishment and capital replacement costs
  6. Security of tenure
  7. Operator default
  8. Termination
  9. What is required by you when vacating the premises and are there any departure fees
  10. Capital gains and losses
  11. Credit risk

Elder Abuse & Claims of Inadequate Care

If you find yourself or your loved one in an aged-care facility where you or your loved one is suffering abuse or neglect by staff, whether physical, mental, emotional, or sexual, we can assist you to negotiate better conditions and peruse a claim if necessary.

Competency Claims & Guardianship Issues

Once a person is certified as being mentally incapable by not less than two (2) independent qualified Geriatricians, a Guardianship Application can be made at VCAT pursuant to the Guardianship and Administration Act 1986 (s24).

Over the years, we have successfully assisted many clients to apply for Guardianship over an elderly relative.

We have also successfully challenged many Applications for Guardianship where the elderly person is then deemed to be capable.

We work closely with family members and Geriatricians to apply for assessments as to competency

FAQ’S

Q:  Competency claims & guardianship claims by children

My mother is getting frail and cannot cope living alone any more. It is getting to the point that it is unsafe to leave her alone. I want to find a nursing home for her but she is resisting.  What can I do?

It may be necessary for you to apply for a Guardianship Order at VCAT. We can prepare a Guardianship Application made at VCAT pursuant to the Guardianship and Administration Act 1986 (s24).

Over the years, we have assisted many clients to apply for Guardianship over an elderly relative. We work closely with family members and Geriatricians to apply for assessments as to competency.

Please do not hesitate to call Jack Cyngler of Cyngler Kaye Levy Lawyers, on 9500 1722 for a confidential discussion.

Q:  Challenges to Competency claims & guardianship claims

My children think I cannot cope anymore at home and want to put me into a nursing home. I do not want to go into a nursing home and think that I can cope alright.  Can I fight a competency and guardianship claim?

Yes, you can challenge an Application for Guardianship where you can establish that you have competency. You do have the right to challenge an application for competency by your children or other relatives.

Call me, Jack Cyngler of Cyngler Kaye Levy Lawyers, on 9500 1722 for a confidential discussion.

Q:  My brothers and sisters are fighting over putting our elderly parent in a nursing home.

My brother thinks that our mother is not able to cope on her own anymore and wants to put her in a nursing home. She doesn’t want to go and I don’t think she needs to either.

Can I stop my brother forcing her to go to a nursing home?

Yes. Your brother would need to apply at VCAT for a Guardianship Application. You can assist her to fight that claim if you don’t agree with your brother. Call Cyngler Kaye Levy Lawyers, on 9500 1722 for a confidential chat.

Q:  Brothers and sisters fighting over future control of a parent’s assets whilst the parent is still alive.

My mother is getting old and cannot take care of her own financial affairs anymore. My sister wants to take control and I am scared she will spend all the money. I know that in her Will my mother has left everything equally to us both, but I don’t think there will be anything left by the time mother passes away. What can I do?

There are a number of things you can do.  Find out if your mother has signed a Financial Power of Attorney, and who the Attorney(s) are.

If your mother has already lost competency, we can assist you to apply to be guardian over her affairs at VCAT to protect her assets whilst she is alive.  Once she passes away, the assets will be distributed according to her Will.

Please do not hesitate to have a confidential meeting with Jack Cyngler of Cyngler Kaye Levy Lawyers, on 9500 1722.

Q:  How can I help my parents choose the right retirement village for their needs and budget?

My father wants to sell the family home and buy into a retirement village but I have heard that many retirement villages take all your equity and there is nothing left at the end.

You are right to be cautious. There are many different types of retirement villages that operate in different ways.

  1. Some take a large amount for a bond and others require a high ongoing maintenance fee. Some require both!
  2. There are some retirement villages that allow you to retain title to your unit or apartment and others that only give you a unit holding.
  3. The contract of sale for retirement villages are usually incredibly complicated and you are right to seek legal advice before committing to any purchase.

We can advise you and your parent of all the consequences in each situation so that you can make an informed decision BEFORE your father signs a contract. Call me, Jack Cyngler of Cyngler Kaye Levy Lawyers, on 9500 1722.

If you require assistance with any of the topics discussed above, please do not hesitate to contact our experienced Lawyers on +61 3 9500 1722, request a cost estimate or email an enquiry.

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