Category Archives: Elder Law

Guidelines for Preparing an Enduring Power of Attorney

Guidelines for Solicitors Preparing an Enduring Power of Attorney is a useful publication of the NSW Law Society containing practical information for lawyers who prepare or witness the execution of an Enduring Power of Attorney.

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Sydney, Australia

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Enduring Guardianship

Individuals in NSW may appoint an enduring guardian under the Guardianship Act 1987 (NSW) to make decisions that affect them if they lose their capacity (ie their mental ability to make decisions). More than one enduring guardian may be appointed. The enduring guardian may make personal decisions on behalf of the individual, such as where they should live and what medical services they should receive. The enduring guardian is appointed by lodging a form with the NSW Civil and Administrative Tribunal.

The NSW Civil and Administrative Tribunal may review the appointment of an enduring guardian, either on its own initiative or at the request of a person who holds a genuine concern for the welfare of the individual.

The tribunal can suspend, revoke, confirm or vary the appointment of an enduring guardian.

An enduring guardian is not the same as an enduring Power of Attorney. An attorney appointed under an enduring Power of Attorney may make decisions that affect an individual’s property or financial affairs if they lose their capacity. The enduring Power of Attorney must be validly prepared by a solicitor. It must be registered with the Land and Property Management Authority if the attorney is required to deal with the individual’s property.

For more information visit http://www.ncat.nsw.gov.au/ncat/guardianship/gt_matter_about/enduring_guardianship.html

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Sydney, Australia

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End of Life Decisions, Law and Clinical Practice

Health professionals in NSW may legally assist their patients make end of life decisions. Such decisions have clinical, legal and ethical difficulties. The NSW Ministry of Health in partnership with other expert bodies has developed a website called Planning Ahead, which provides information for health professionals on how to make end of life decisions.

For more information visit http://healthlaw.planningaheadtools.com.au/

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Sydney, Australia

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Elderly widow awarded costs in pro bono litigation

In the matter of Mainieri & Anor v Cirillo [2014] VSCA 227 (17 September 2014), the Victorian Court of Appeal awarded costs to the successful plaintiff who was represented on a pro bono basis.

Rita Cirillo sold her property and contributed the proceeds towards her son and daughter-in-law’s mortgage on the condition that she live with them indefinitely and that they take care of her. Her relationship with her son and daughter-in-law later broke down and it was not longer practical for her to remain living with them. When she sought repayment, her son and daughter-in-law alleged that the monies were an out and out gift.

The Court of Appeal held that Cirillo was entitled to an equitable lien or charge over the property to secure repayment with interest.

On the question of costs, there was a dispute over whether or not the Cirillo was entitled to costs as she was represented on a pro bono basis. The court held that the costs payable to her lawyers, Clayton Utz and Dr Glover, were payable under costs agreements that were contingent upon a costs order being made.

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Sydney, Australia

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Declaration of Rights for Older People

The Welsh Government has produced the Declaration of Rights of Older People in Wales.

The declaration is the first of its kind in the world. It’s purpose is to clarify the rights of older people in Wales. It aims to help older people understand:

  • how the rights apply to them;
  • how they access the rights more effectively; and
  • how the rights relate to the current equality and human rights laws.

The declaration also aims to set out the expectations of older people for the benefit of those responsible for providing them with public services.

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Sydney, Australia

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Capacity Toolkit

THE NSW DEPARTMENT OF ATTORNEY GENERAL & JUSTICE publishes the Capacity Toolkit, which is a guide to assessing one’s ability to make legal, medical, financial and personal decisions.

The ability to make their own decisions is known as “capacity”. If one is concerned of another’s capacity to make a decision for themselves, they must do a capacity assessment. Capacity assessments are often performed by family members, friends, carers, doctors, health care works, government workers, lawyers, bank managers or any person who provides services.

Capacity Assessment Principles are as follows:

  1. Start by assuming the person has capacity to make decisions.
  2. Capacity is decision specific. If one can’t make a decision about one thing they may still be able to make other decisions.
  3. Never assume a person lacks capacity because of appearances.
  4. Assess the person’s decision making capacity, not the decision they make.
  5. Respect a person’s privacy.
  6. Substitute-decision making is a last resort.

A person who is assessed as not being able to make a decision may need a “substitute decision maker”.

Disputes about capacity may be taken to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) of Level 3, 2a Rowntree Street, Balmain NSW 2041, tel 1800463928.

Further information can be found at the Aged Care Rights Service and NSW Government Diversity Services.

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Sydney, Australia

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Preventing Financial Abuse of People with Dementia

Alzheimer’s Australia has released Preventing Financial Abuse of People with Dementia (June 2014).

Recommendations include:

  • Establishment of a NSW Public Advocate to investigate reports of financial abuse.
  • Refer to the NSW Law Reform Commission an examination of a register of Enduring Power of Attorneys; an investigation of how to appropriately respond to financial abuse of people with dementia; and an investigation of the adequacy of current laws covering financial abuse under the Powers of Attorney Act 2003.
  • Amending the NSW Interagency Protocol for Responding to Abuse of Older People to reflect any changes to the legislation and practice.
  • Establishment of a Vulnerable Communities Officer role in all Local Area Commands of the Police Force to identify those at risk of financial abuse and to support victims.
  • Education of attorneys appointed under Enduring Powers of Attorney as to their rights and responsibilities.
  • Public education about financial abuse.
  • The Australian Prudential Regulation Authority to require banking and finance services to develop systems to prevent abuse and develop protocols to report suspected abuse to public advocates.
  • Mandatory training for banking and finance staff to identify financial abuse.
  • Banking and finance staff to provide customers with information about how to protect themselves from financial abuse.
  • Lawyers to receive training about financial abuse as part of their continuing legal education requirements.
  • Funded age care organisations required to make staff aware of their obligation sunder the NSW Interagency Protocol for Responding to Abuse of Older People.

Alzheimer’s Australia NSW recommends that victims of financial abuse contact NSW Elder Abuse Helpline on 1800 628 221, a confidential service offering information, advice and referrals. 

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Sydney, Australia

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Anti-Discrimination Regulation 2014

ON 29 AUGUST 2014, the NSW Government made the Anti-Discrimination Regulation 2014. The regulation among other things amends the Anti-Discrimination Regulation 2009 to allow registered clubs to lawfully provide to a member a concession (such as reduced membership fees), by reason of their age.

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Protecting people with dementia from financial abuse

Alzheimer’s Australia has produced Is it Dementia – a resource for recognising the signs of dementia. For additional information about Dementia go to http://isitdementia.com.au/information.html.

Lawyers

Sydney, Australia

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NSW Civil and Administrative Tribunal

The NSW Civil and Administrative Tribunal (NCAT)http://www.ncat.nsw.gov.au/ncat/index.html commenced on 1 January 2014 pursuant to the NSW Civil and Administrative Act 2013 and Civil and Administrative Regulation 2013.

The NCAT takes over the functions of 22 former state tribunals, including:

  • Aboriginal and Torres Strait Islander Health Practice Tribunal
  • Aboriginal Land Councils Pecuniary Interest and Disciplinary Tribunal
  • Administrative Decisions Tribunal
  • Charity Referees
  • Consumer, Trader and Tenancy Tribunal
  • Dental Tribunal
  • Guardianship Tribunal
  • Chinese Medicine Tribunal
  • Chiropractic Tribunal
  • Medical Radiation Practice Tribunal
  • Medical Tribunal
  • Nursing and Midwifery Tribunal
  • Occupational Therapy Tribunal
  • Optometry Tribunal
  • Osteopathy Tribunal
  • Pharmacy Tribunal
  • Physiotherapy Tribunal
  • Podiatry Tribunal
  • Psychology Tribunal
  • Local Government Pecuniary Interest and Disciplinary Tribunal
  • Local Land Boards
  • Victims Compensation Tribunal (transferred into the ADT in June 2013)
  • Vocational Training Appeals Panel.

The NCAT is constituted by a President (a Supreme Court judge), Deputy Presidents of each of the four divisions, a Principal Registrars and Members including Principal Member, Senior Members and General Members.

The NCAT has four divisions:

  • Administrative and Equal Opportunity, which deals with review of administrative decisions of government agencies and resolution of discrimination matters.
  • Consumer and Commercial, which deals with a broad number of disputes about the supply of goods and services, including agent commissions and fees; agricultural tenancies; boarding houses; consumer claims; conveyancing costs; dividing fences; holiday parks (long-term occupancy); home building; motor vehicles; pawnbrokers and second-hand dealers; residential parks; retail leases; retirement villages; social housing; strata and community schemes; tenancy; travel compensation fund appeals.
  • Guardianship, which has jurisdiction over people who live in NSW or hold property or financial assets in NSW: to make guardianship orders for the appointment of a private or public guardian; make financial orders for a private or public financial manager; provide consent for medical or dental treatment; review enduring powers of attorney; review an enduring guardianship appointment; approve a clinical trial involving people with decision-making disabilities.
  • Occupational, including: administrative review of licensing decisions with respect to transport drivers/operators, security guards, builders, real estate agents, motor dealers and repairers, pawnbrokers and second hand dealers, stock and station agents, business agents, travel agents, valuers and licenced conveyancers; professional discipline of occupations governed by a statutory council, board, panel or authority.

The current President is Justice Robertson Wright SC and the Deputy-Presidents are Magistrate Nancy Hennessy, Mr M D Schyvens, Mr Stuart Westgarth, The Hon. Wayne Haylen QC and Judge Kevin O’Connor AM.

The principal registry is located at Level 9, John Maddison Tower, 86-90 Goulburn Street, Sydney NSW 2000, tel 1300 006 228.

The divisional registries are:

  • Administrative and Equal Opportunity: Level 10, John Maddison Tower, 86-90 Goulburn Street, Sydney NSW 2000.
  • Consumer and Commercial: Level 12, 175 Castlereagh Street, Sydney NSW 2000 (also at Liverpool, Hurstville, Newcastle, Penrith, Tamworth and Wollongong).
  • Guardianship: Level 3, 2a Rowntree Street Balmain NSW 2041.
  • Occupational: Level 10, John Maddison Tower, 86-90 Goulburn Street, Sydney NSW 2000.

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