It is no secret that Australia currently has an aging population with the median age of the population currently sitting at 38 years of age, 3 years older than the previous median recorded in 2000.
Elder law is the area of the law relating to all aspects of aging and the senior community in Australia.
Elder law broadly covers areas such as health, the management of personal affairs, elder abuse and estate planning. Elder law also encompasses guardianship which occurs when the Victorian Civil and Administrative Tribunal (VCAT) is called upon to make Guardianship Orders.
This results in an appointee becoming a ‘guardian’ for someone who may be lacking in capacity, and allows the guardian to make decisions on the individual’s behalf.
It is important for older Australians to consider executing documents such as Wills, powers of attorney and medical treatment decision maker documents to ensure their affairs will be dealt with according to their wishes.
Guardianship allows a person to make decisions about personal matters for the individual with decision-making difficulties. Older Australians may need a guardian for various reasons, usually due to age related illnesses such as dementia. Guardians can make decisions about the following:
- Where the person lives;
- Medical, dental and health care matters;
- Support services; and
- Where they work.
If an individual is still able to make decisions with support, then a supportive guardianship order may be made instead. A supportive guardian cannot make decision on behalf of the individual, but they can support them to make decisions, and can give effect to those decisions.
VCAT will opt for the least restrictive orders that are appropriate to the circumstances of the individual.
A guardian does not have the power to make decisions about an individual’s money however, money management is the job of an administrator.
Administrators are appointed in a similar way to guardians, under an administration order, however their role is to make decisions about how a person looks after their money including:
- Paying off debts and fines;
- Entering into contracts;
- Looking after bank accounts;
- Taking legal action on the persons behalf; and
- Managing investments.
VCAT can also make supportive administration orders. A supportive administrator can support a person to make financial decisions and give effect to those decisions, but they cannot make financial decisions on behalf of the individual.
A person is presumed to have decision-making capacity as per the Guardianship and Administration Act 2019 so these orders will only be made where there is evidence that the individual in question lacks or is loosing capacity.
Power of Attorney
An enduring power of attorney is a legal document that allows a person to nominate someone to take care of their personal affairs or financial matters.
The person nominated is called an attorney.
The power of attorney can be limited to cover specific matters and will come into force when stipulated, usually when the person named loses capacity to make decisions themselves.
A person can only make a power of attorney if they have the decision-making capacity to do so. This means that if a person no longer has decision-making capacity, a power of attorney cannot be made on their behalf, and guardianship or administration orders through VCAT will need to be sought.
Powers of Attorney are governed in Victoria by the Powers of Attorney Act 2014 .
A person is presumed to have decision making capacity unless there is evidence indicating otherwise.
Age-related disabilities and illnesses such as Alzheimer’s and dementia may affect a person’s capacity, and lawyers will be particularly cautious when assessing the capacity of an individual with such conditions to make a power of attorney.
If a person’s capacity is in doubt, the individual may be required to undergo an assessment by a medical practitioner to determine if they have capacity. Warning signs that a person’s decision-making capacity may be diminished include the following:
- They have memory difficulties;
- In relation to powers of attorney, the person does not understand what the document is or how it will affect them;
- They have difficulty communicating or expressing themselves; or
- They’re disoriented and forgetful and may not attend appointments they have made or follow up with paperwork.
Estate Planning and Wills
It is a good idea for all adults, but especially seniors, to create a Will and other end of life preparation documents such as a letter of wishes.
A Will outlines how a person’s estate should be divided, who will benefit and who will execute the bequests listed in the Will.
As such, a person making a Will or a “Testator”, will need to appoint an executor to carry out their wishes and distribute the estate amongst beneficiaries.
A Testator will also need to clearly nominate the beneficiaries and clearly state what they are to receive from the estate. If a testator is leaving assets in a trust, they will also need to nominate a trustee or appointor to manage the trust.
For the Will to be validly executed, it will need to be signed in the presence of two witnesses.
Although it is possible to create a Will without a solicitor, it is highly recommended to engage an expert estate planning solicitor to draft the document, as Wills can be easily overturned by a court if not correctly drafted.
If a person dies without a Will, they are “intestate” and their estate will be divided as per intestacy laws, usually amongst their spouse and other family members, however there are often lengthy delays to this process and a person’s estate may not be divided in the manner they wish.
A statement or letter of wishes is an informal document made by a Testator that accompanies their Will. It is not legally binding in the way a Will is, but it provides greater detail of the Testator’s wishes and assists the executor in dividing assets of the estate amongst beneficiaries.
A statement of wishes may be useful to explain why someone has been left out of a Will, it may contain a record of assets and liabilities and it may include instructions for how personal items are to be divided if they are not included in the Will.
A Testator must also have decision-making capacity as with making powers of attorney. This is formally referred to as testamentary capacity.
The test for determining testamentary capacity in relation to making a Will is found in the High Court case of Banks v Goodfellow (1870). In this case it was determined that a person making a Will must be free of any delusions affecting their capacity to make their Will and understand all of the following:
- What it means to be making a Will;
- What is in their estate and what would they be leaving to beneficiaries; and
- Who are the people who might be expected to be beneficiaries.
Where concerns exist surrounding the decision-making capacity of a testator, the Testator may be referred to a medical professional for formal assessment.
Elder Abuse Prevention
Elder abuse is an act of intentional harm or neglect of an older person. It is usually inflicted by a carer, friend, professional or family member.
In 2021, results were released from a national elder abuse study which indicated that approximately 1 in 6 older Australians experienced elder abuse in any given year. Elder abuse can be in any of the following forms:
- Physical abuse: physical harm due to either neglect or violence such as hitting and kicking;
- Sexual abuse;
- Emotional or psychological abuse including behaviours that inflict mental harm or anguish such as verbal abuse, humiliation, threats and harassment;
- Neglect by failing to meet the basic needs of the person; and
- Financial abuse including the improper use of a persons money or belongings.
The Victorian Government has established the Elder Abuse Prevention and Response Initiative which is advised by the Elder Abuse and Safeguarding Advisory Group.
From this initiative, a statewide elder abuse line has been created alone with counselling and mediation services, an elder abuse learning hub and public awareness campaigns.
There is also a national helpline for elder abuse at 1800 ELDERHelp.
It is important to be aware of the signs that someone may be experiencing elder abuse. Some of the red flags that an older person may be experiencing abuse include:
- Evidence of physical abuse such as:
- Bruises, bite marks or cuts and scratches; and
- Broken bones or sprains.
- New fear or anxiety;
- A desire to make a new Will without any understanding of what that will mean, especially if it benefits one person who may been exerting an outsized influence on an elderly person suffering from declining cognitive abilities;
- Withdrawal from social activities; and
- Low self esteem.
Healthcare Decisions and Advance Care Directives
A person can also appoint a medical treatment decision maker, which as the name suggests, is a person who makes decisions on their behalf relating to medical matters if they become incapacitated.
The laws about medical treatment decision makers can be found in the Medical Treatment Decision Makers Act 2016.
As with powers of attorney, a person making a medical treatment decision maker document must have the decision-making capacity to do so. If a medical treatment decision maker document has not been made before a party has lost capacity, a medical treatment decision maker would need to be appointed by VCAT.
An advance care directive outlines a person’s wishes in relation to their future care.
Again, a person making an advance care directive must have decision-making capacity. These documents differ between states but in Victoria, an advanced care directive can provide instructions to how a person would like their care and medical needs handled and allows them to appoint a support person.
Financial Management and Protection for the Elderly
When an older person is unable to manage their financial affairs, they may have an administrator or supportive administrator appointed by VCAT to make financial decisions for them or to help them make financial decisions.
If an older person had already created a power of attorney, these documents may come into force to allow the attorney to manage the person’s financial affairs.
Kate Scolyer – Solicitor– Matthies Lawyers
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice