Elder Law
Elder Law
Elder law focuses on the specific challenges faced by Australia’s older population. These challenges might arise when a person enters a retirement village or a granny flat agreement, arranges for a Power of Attorney or Advance Care Directive, or enters into a guardianship arrangement through South Australian Civil and Administrative Tribunal.
What Do I Need to Know About Retirement Villages?
Entering into a contract with a retirement village is not the same as buying a normal residential property. You do not own the home in which you live: rather, you have a licence which gives you the right to occupy a residence. You need to know that you may not be able to transfer your interest in the residence.
It is essential for you to understand what you are agreeing to when you move into a retirement village. Village management must provide you with a disclosure statement, residence contract and other documents that will inform you of your rights and responsibilities.
What is a Granny Flat Agreement?
It is quite common for older South Australians to live with family members. Sometimes this accommodation is literally a “granny flat”, a separate dwelling on a property owned by a family member or close friend. Other times, the living space might be within the principal home itself.
This living arrangement can become more complicated if the older person exchanged funds for the right to live on the property. For instance, the older person may have helped to buy the principal property with an informal loan or have actually transferred ownership of the property to the new owner before moving into the granny flat. If you are in that situation, it is important to protect your investment.
One way to safeguard your investment is to enter into a binding Granny Flat Agreement. This agreement enables you and the homeowner to clarify expectations and ensures that you have security of tenure in the property. It should also set out what will happen in the future, such as if your care needs change. This agreement may be especially important if you are receiving a Centrelink benefit.
What is a Power of Attorney?
You may want to make a Power of Attorney (POA) so that someone can make decisions on your behalf. For instance, you may give someone a POA if you are going to travel overseas and want them to manage certain matters in your absence.
A general power of attorney ends if you die or become incapacitated (although it can also be created for a set time, such as the two weeks you are out of the country). If you want to appoint someone to make decisions for you in the event that you lack capacity, then you need to make an enduring power of attorney.
An Enduring Power of Attorney continues even if you lose capacity. In fact, this sort of power is sometimes designed to be enacted only if and when you lose the ability to make decisions for yourself.
What is an Advance Care Directive?
You can use an Advance Care Directive to clarify your wishes for your future health care, living arrangements and other personal matters. It is not a will, as it does not leave instructions about the distribution of your property after your death. It also cannot be used to give someone else authority to make financial decisions on your behalf.
What is Guardianship and Administration?
The South Australian Civil and Administrative Tribunal (SACAT) can make guardianship and administration orders for a person who cannot look after their own health, safety, or welfare, or manage their own affairs. These orders are made under the Guardianship and Administration Act 1993. An administrator deals with financial and legal matters, while a guardian makes decisions for personal and health care matters. SACAT also has the jurisdiction under the Mental Health Act 2009 to make and review treatment orders relating to people suffering from mental illness.
Guardianship and Administration Act Proceedings
Anyone concerned with the care of a person can apply to SACAT. The applicant and the person about whom the application is made will be parties to the application. Other people with an interest in the application can also participate.
Applications can only be completed on-line; however, if computer access or use is a problem, SACAT has officers you can telephone who will complete an application with you. SACAT tries to be user-friendly and informal so members of the public can represent themselves if they want to, but many benefit from the advice of a lawyer.
There are two broad areas of orders: guardianship (which relates to medical and lifestyle matters) and administration (which relates to financial and legal matters).
Orders can be all-encompassing, or only relate to specific matters such as where someone lives. Some orders will give special powers to detain a person.
SACAT must be satisfied a person has a mental incapacity before making any order and must make the least restrictive order that will protect the person and their rights. Making guardianship or administration orders which take away a person’s ability to make their own decisions is a very serious step, and not one which will be taken without careful consideration and clear need.
Mental Health Act Proceedings
When a person suffers under a mental illness (as distinct from a mental incapacity) their treatment may become subject to the laws of the Mental Health Act 2009. Under this Act, doctors or other health professionals can also make orders about a person’s treatment. Treatment and orders made are subject to strict oversight by SACAT. Appeals and reviews can be heard, in the first instance, by SACAT. If a satisfactory result is not achieved, a further appeal to a Court may be possible.
How Can We Help You?
From abuse of a power of attorney to the legal complexities of retirement village licences and granny flat agreements, many Australians of advancing years face new and challenging problems. Sometimes a little advice is all you need to give you the comfort of knowing where you stand. Other times, you need someone to go in to bat for you. Because of our specialist knowledge in matters relating to aged care, agency, and equity, we are well placed to help.
We can advise on all contracts, such as licences to occupy a unit at a lifestyle village or granny flat agreements, so you can make an informed decision with peace of mind. If you are having second thoughts about something you signed, we can advise on your cooling-off rights or how to terminate the contract.
We can also advise attorneys and administrators, who must know the limits of their authority and the principles they must uphold. All too often we hear of well-meaning family members giving advice which results in a breach of duty and legal liability. With a little advice, attorneys and administrators can act with confidence knowing they are doing the right thing.
If you feel your rights to make your own decisions are under threat, we may be able to help you, whether by negotiating with others involved or by representing you in Court or before SACAT. We can provide advice and advocacy at every step of the process to protect your rights and ensure your voice is heard.
If you need assistance, contact one of our lawyers at tr*****@*********et.au or call 08 8231 4757 for expert legal advice.