ELDER LAW

Elder Law is the collective name given to all those legal services and issues which have particular relevance to the Elderly in our society.

The Elderly are an increasingly populous but also increasingly vulnerable sector of our community and unfortunately
abuse, advantage and manipulation of the Elderly is also on the rise.

At MJS Law we have a special interest in the Elderly and in all areas of law which relate to the needs of the Elderly and vulnerable in our community.  MJS Law also understands that the Elderly may have issues with mobility and that arranging to see a solicitor can be difficult and daunting.  We can therefore offer eligible clients the convenience of appointments in their own homes or at nursing homes or hospitals.

Purchase or sale of Retirement Village Accommodation

Unlike residential conveyancing, purchasing a unit in a Retirement Village involves more than just a transfer of title.  There are agreements which the Retirement Village operator will require an incoming purchaser to enter into which relate to service charges, use of common property and place restrictions on how the unit can be dealt with and to whom it can be sold.  In some cases no title to property is involved, but rather there is a Licence Agreement, which gives the incoming resident the right to occupy a specific room or unit.  It is vital that anyone looking to move into a Retirement Village seeks advice from a lawyer experienced in such transactions, to ensure that they are fully informed and understand their rights, obligations and liabilities under the arrangement.  MJS Law has the necessary experience in such transactions to ensure that you can make your move with confidence.

Enduring Powers of Attorney

It is vital that as we get older, we consider the possibility that we may be temporarily, or permanently, unable to manage our affairs due to illness, accident or infirmity.  Giving consideration to this possibility before it happens means that arrangements can be put in place to ensure that the everyday and special decisions that will inevitably have to be made in relation to finances, health and lifestyle are made by the person or people that you choose, and not by someone else or an impersonal corporation.

There are three types of Enduring Power of Attorney that can be entered into:

Financial This type of Enduring Power of Attorney gives the person or persons whom you appoint powers to deal with your financial and legal affairs, including the sale of your home.  It is a very wide-ranging power and great care should be taken when deciding to whom it should be given.  You can appoint more than one Attorney and can chose whether they should be required to act jointly - meaning they would have to agree on every decision - or whether they each act individually.  It is also possible to impose restrictions on the extent of the power, or in what circumstances it becomes exercisable.

Medical This type of Enduring Power of Attorney gives the person you choose the power to make decisions about the medical treatment that you receive.

Guardianship This type of Power lets you choose who will make lifestyle decisions on your behalf, such as where you will live and who will be entitled to visit you.

In 2004, legislation was introduced which required that an Enduring Power of Attorney must be witnessed by a person who was qualified to witness a Statutory Declaration.  One of the main reasons behind this change in the law was to prevent financial abuse of the elderly by persons who might coerce or trick a person whose capacity to make decisions was diminished into signing a Power of Attorney in their favour.  Nowadays a aualified person witnessing an Enduring Power of Attorney must sign a certificate confirming that the person giving the power appeared to understand the nature of the document and was signing it of their own free will.

Guardian and Administration applications at VCAT

In cases where a person is under a disability preventing them from managing their own affairs and no valid Enduring Power of Attorney is in place, an application can be made to VCAT for orders relating to the Administration of the incapacitated person's financial affairs or their living arrangements.

VCAT will require proof that the person who is the subject of the application is in fact under a disability - this would generally be by medical evidence from a General Practitioner or specialist doctor. 

VCAT can make orders appointing persons to the role of Administrator or Guardian and can impose conditions, requirements or limitations on such appointments.  Appointments last up to three years and the appointees are required to provide annual accounts of their administration.