Elder Law & QCAT
Elder law is an area of legal practice that focuses on the specific challenges faced by our senior citizens.
With an ageing population, there is a heightened need for solicitors with knowledge and experience in elder law issues.
The legal matters or transactions may not be exclusive to older people however expertise in elder law addresses how such legal matters and transactions impact specifically on older people.
Our experienced and compassionate lawyers can assist with all areas of elder law, protecting the rights of the vulnerable, and providing guidance for seniors and their family members.
Enduring Power of Attorney
All adults should consider making an Enduring Power of Attorney (EPOA). An EPOA allows you to nominate someone else, (the attorney), to make decisions on your behalf.
An elder person who is worried about losing capacity as they grow older may, for instance, choose to appoint their partner, child, other relative or friend to make decisions about personal (including health) matters and financial matters.
In your EPOA you can:
- decide when your attorneys power begins for financial matters. You can allow your attorney to make financial decisions right away (even though you’re still of sound mind) or you may prefer to restrict the commencement of their power for financial matters to when you have lost capacity.
- decide how your attorneys make their decisions if more than one is appointed.
- include non-binding views, preferences and wishes;
- set terms to restrict or enhance the attorneys powers;
- impose obligations on your attorney to keep others informed of decisions made
There are lots of options when making your EPOA and one size doesn’t fit all. That’s why it’s important to seek professional assistance from an experienced solicitor when preparing your EPOA to consider the options and make informed decisions.
An EPOA is a very powerful document – you should choose your attorney very carefully.
Attorneys sometimes misuse the power given to them.
When an attorney fails to comply with their obligations, urgent steps may need to be taken to preserve a person’s assets and remove the attorney as decision maker. Our team have significant experience in investigating misuse of power of attorney and assisting with applications to the Queensland Civil and Administrative Tribunal (QCAT) for appropriate orders.
We also provide advice to attorneys who are keen to ensure they are fulfilling their obligations properly under the EPOA and the legislation. It is critical that an attorney is mindful of the General Principles in the Powers of Attorney Act 1998 (Qld) when making decisions.
Administration and Guardianship
A person must have the required capacity to make an EPOA. If you lose capacity and do not have an EPOA, who will make decisions about your personal (including health) matters and financial matters?
We regularly assist clients with applications to QCAT seeking to be appointed as Administrator (for financial matters) and/or Guardian (for personal matters) for a person who has lost capacity and does not have an EPOA.
Gifts & Loans to family members
The financial and legal considerations of gifting or lending money are significant. We understand you may want to help your loved ones or friends but before you do it is important to obtain legal and financial advice. Failure to do so may result in you being the one that needs some financial assistance in the future.
Our team will discuss the various options and scenarios with you to ensure you are fully aware of how the gift or loan will impact you. Considerations can include:
- Breach of Government ‘gifting rules’ for pension & Home Care/Aged Care
- Affordability
- Family disharmony
- Risk of gift being lost once received (bankruptcy, relationship breakdowns etc)
- Presumptions of undue influence
- And many more
Residential Aged Care
It’s not everyone’s preferred option but like it or not we need to consider the possibility of a permanent move into an Aged Care facility at some time in our lives. Aged Care is undergoing significant reforms as the Government attempts to address the care and accommodation needs of our ageing population. We can provide you or your family with advice on the process for a move into Aged Care and review entry documents known as Residential Care Agreements to give you peace of mind. Financial advice is critical when considering a move into Aged Care and we work in with financial advisors who have experience in this area to ensure a seamless transition.
Reverse Mortgages
A reverse mortgage is an option for some people who wish to access the equity in their home to ‘free up some cash’.
The money can be received as a lump sum or as an income stream. A common feature of reverse mortgages is that no regular repayments are required, and the debt is usually repaid on sale.
A loan accruing interest where no repayments are being made can significantly erode the equity in the home. Entering into a reverse mortgage requires careful consideration. It is critical to obtain legal and financial advice (and most lenders will insist on it) to ensure you are entering into the transaction fully informed so that there are no surprises.
Elder Abuse
Elder abuse is the exploitation or neglect of an older person. Sadly, the perpetrators of elder abuse are commonly family members or trusted friends of the elderly person.
Not all elder abuse causes physical harm. In fact, financial abuse is one of the most common forms of elder abuse. Financial abuse can include pressuring or intimidating a person to gift money or property or providing a guarantee on a loan. A common method of elder abuse is for a person to be removed and isolated from their social networks with the perpetrator taking control of online banking and credit cards for their personal gain.
When Elder abuse is suspected, it is critical for appropriate investigations to be promptly done. If Elder abuse is identified it is critical that steps are promptly taken to stop the abuse from continuing.
If you need assistance, contact [email protected] or call 07 5443 9600.