Elder Law 

Wills & Powers of Attorney in Elder Law. Get the advice you need from our Elder Care Lawyers.

It is very important to have in place a Will and Powers of Attorney as you get older

As Elder Law Lawyers we can simply and easily take you through all the steps to get the documents set up and signed. See our Wills & Powers of Attorney pages for more details.

Do I need to be capable of understanding and signing legal documents? 
Whilst you have Capacity
Yes. It is important to have these documents made whilst you still have capacity. Once you lose capacity to understand, you will lose the right to make a Will or sign up Powers of Attorney.

Whilst you are alive
An Enduring Medical Power of Attorney & a Financial Power of Attorney should be signed so that your loved ones are able to make requests and decisions on your behalf if you become incapacitated.

 Once you pass away
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 according to a strict government formula and not according to your wishes.

    testament

    Important To Note

    It is important 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
    • Bank Accounts
    • Superannuation Policies
    • Shares, Debentures, Stock, Units in Trusts
    • Cash
    • Other Valuables such as motor vehicles, caravans, boats, coin collections, art works & jewelry.

    See our section on Wills & Estate Planning

    Retirement Villages & Aged Care Facilities in Elder Law

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

    You can ask our Elder Law Lawyers for Elder Care legal Advice on what are the benefits and risks of buying into a retirement village or aged care facility.

    Legal Structures in Elder Law – Elder Law Planning
    What are the main types of legal structures that underpin a retirement village or aged-care facility?

    • Long-term lease
    • long-term licence
    • Strata title
    • Community title
    • Company title
    • Unit trust
    • Manufactured home
    • Conventional lease structures

    Any of these will be contained in an incredibly detailed legal document. It is essential to get sound advice from our Elder Law Lawyer who also has experience in Property Law to carefully examine the documentation in order to advise you of the terms and conditions.

    What are some key issues to identify before entering into a retirement village contract?

    • Type of title holding
    • Stamp duty
    • GST
    • Service charges and other administration fees
    • Refurbishment and capital replacement costs
    • Security of tenure
    • Operator default
    • Termination
    • What is required by you when vacating the premises and are there any departure fees
    • Capital gains and losses
    • Credit risk

    Elder Abuse & Claims of Inadequate Care
    Ask our Elder Law Lawyers for advice

    Elder Abuse
    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, financial, emotional, or sexual, we can assist you to negotiate better conditions and commence 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 who has lost capacity and did not put in place financial and medical Powers of Attorney before they lost capacity.

    We have also successfully challenged many Applications for Guardianship where the elderly person is then deemed to be capable.
    Our Elder Law Lawyers work closely with family members and Geriatricians to apply for assessments as to competency, and then take the matter to VCAT.

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    FAQs – Your Elder Care Questions Answered

    Q. What happens if I don’t think my Mum or Dad has the capacity to sign a document?

    Our Elder Law Lawyers can assist you to arrange a Geriatrician to examine your Mum or Dad, and get an assessment.

    Q. What if Mum or Dad refuses to move into an old age home?

    Competency claims & guardianship claims by adult 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 pursuant to the Guardianship and Administration Act.

    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.

    Q. My children are challenging my Competency. Can I fight a challenge to my competency?

    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.

    Q. My brothers and sisters are fighting over putting our elderly parent in a nursing home - What can I do?

    “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. “

    You can ask our Elder Lawyers how to stop your family members from interfering. 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 us to have a confidential chat.

    Q. What can I do when my brothers and sisters are fighting over future control of our parent’s assets whilst our Mum and Dad are still alive?

    “Our parents are getting older and cannot take care of their own financial affairs anymore. My sister wants to take control and I am scared she will spend all the money. I know that in their Wills my parents left everything equally to us all, but I don’t think there will be anything left by the time they pass away. What can I do?”

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

    If your parents have both lost competency, we can assist you to apply to be guardian over their affairs at VCAT to protect their assets whilst they are still alive.  Once both pass away, the assets will be distributed according to your last remaining parents Will.

    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.

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