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Elder Law

HOGAN STANTON LAWYERS ARE ABLE TO ASSIST IN THE FOLLOWING AREAS OF ELDER LAW:-

Elder Abuse 

Retirement Village Agreements

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Nursing Home, Hostel and Home Care Agreements

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Tailored Estate Planning Wills

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Challenging Wills 

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Advance Medical Directives

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Power of Attorney

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Guardianship Appointments 

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Liability Claims and Defenses 

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Disputes Concerning Capacity to Make Decisions and Sign Documents

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Elder Abuse

Elder abuse is anything that might be cause harm or distress to an older person. Elder abuse can take a variety of forms, including physical harm, sexual assault, neglect, and financial and psychological abuse. Abuse is generally carried out by someone close to the older person.  Elder abuse is frequently concealed and might be challenging for victims to discuss.

Retirement Village Agreements 

Retirement Village Contracts differ from the typical buy/sell agreements that people are familiar to.

Hogan Stanton Lawyers can assist in the areas of:​

  • Corporate structuring and not for profit issues;

  • Review of residence contracts (licence agreements, leases, sale contracts);

  • Termination, sales, conveyancing;

  • Residents Committee and Body Corporate issues;

  • Resident disputes, and disputes before QCAT;

  • Village closure

  • Review of Public Information Documents;

  • Establishment of village bylaws and policies,

  • Review of scheme documents;

  • Statutory compliance;

Nursing Home, Hostel and Home Care Agreements

Aged Care Facilities are commonly referred to as "hostels" or "nursing homes." Under the Aged Care Act 1997, the Commonwealth Government controls these facilities. In accordance with a resident agreement, people in an aged care facility occupy their room, apartment, or bed in a nursing home. Before the care recipient accepts residential care, the approved provider must present a Residential Care Agreement. The Aged Care Act (ACA) specifies the agreement's regulations. However, because it is an agreement, and because the agreement must allow the parties to be on equal terms, the conditions are not limited by the ACA and it is always possible to make additional suggestions and arrangements which, if agreed, must be included.

Tailored Estate Planning Wills

If you need help in making a Will, organising a Power of Attorney or administering or disputing an estate, our team is here to assist you.

We all accept that one day we will die.  If you don’t have a will when that day comes, your assets could be distributed contrary to the way you otherwise would have intended.

What is a will?  A will is a legal document which will as far as possible ensure your assets are distributed according to your wishes after you die.

Your will can cover your assets such as your house, land, car, shares, bank accounts and other property.

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Tailored Estate Planning Wills can include: ​

  • Tax advantaged trusts for young adult children and
    grandchildren with young families;

  • Family agreements for special accommodation
    such as ‘granny flats’ and similar arrangements

  • Protective trusts for disabled beneficiaries;

  • Trusts for at risk beneficiaries (insolvency, family
    conflict, vulnerable through drug, alcohol & gambling habit);

  • Education trusts for grandchildren;

Challenging Wills 

A Will can be challenged if a person considers the Will is invalid. 

There are many types of disputes that can arise in relation to a will or estate, including:

  • Informal wills where the strict rules applying to Wills hasn’t been followed

  • Court made (or statutory) wills where the Will maker doesn’t have the mental capacity to make a Will, but where a loved one seeks to have the court install a will for them.

  • Challenging the validity of a will;

  • Executors defending a will against those seeking a greater share of an estate; and

  • Situations where there is no valid Will.

  • Family provision applications – in other words, claims by a person saying they haven’t been adequately provided for in the will of the deceased.

  • Wills that are challenged based on allegations about the will maker’s lack of capacity.

  • Challenges to Wills based on Duress, or undue influence

  • Disputes between Executors about management of an Estate

Advance Medical Directives

An Advance Care Directive is an instruction that a person makes now about their future medical treatment or health care in the event he or she loses capacity to make decisions. They are a useful tool that people can use to express their wishes, in advance, to their families, friends as well as medical professionals. You are in control of making your own health care decisions as long as you are able to do so. The health care representative does not have the power to make health care decisions for you unless your doctor or other health care provider determines that you are not capable of communicating and making health care decisions.

Power of Attorney

It is a fact of life that at some stage you may be unable to handle our own personal affairs due to declining health, severe accident or loss of mental capacity.    If you do not wish for a government department or institutional trustee to handle your financial affairs or some other person you do not trust to handle your personal health matters then you can safeguard your affairs by making an enduring power of attorney.

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There are generally two types.  A power of attorney can be a General Power of Attorney or an Enduring Power of Attorney.

A General Power of Attorney is usually used for business purposes by a corporation or an individual.

An Enduring Power of Attorney is a legal agreement which gives someone else the power to make personal/health and/or financial decisions on your behalf whilst you are still alive.  The word “Enduring” simply means that the power continues even if you lose the capacity to make the decision yourself until you die.

 

It is important that you give someone you trust this power.  This is because you may not always be able to make decisions as and when you need to.  Consider what would happen if you were overseas when important decisions were to be made and documents signed about the sale of your property.    What would happen if you are too ill to make your own choices as to the medical treatment you receive or where you will live? 

What happens if an injury prevents you from making decisions or being able to communicate what you decisions are?

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Giving someone an enduring power of attorney means that your wishes will be carried out, even when you lose capacity to make decisions yourself.

Why take the risk of making your own enduring power of attorney? 

Certain legal requirements must be followed to ensure the validity of the Enduring Power of Attorney and Hogan Stanton Lawyers can ensure these requirements are met.

We will speak to you about:

♦  your choice of attorney and number of attorneys

♦  the extent of the powers you wish to give your attorney/s

♦  any specific requirements you wish met

♦  when you would like the power to commence

Don’t forget that your Enduring Power of Attorney does need to be reviewed from time to time as certain circumstances may automatically revoke your document such as on death, marriage or in the event of a divorce.  You may also decide that you need to change your choice of attorney or other provisions made.

When making your enduring power of attorney, speak to your solicitor about giving an Advance Health Directive.

Guardianship Appointments 

When someone is no longer able to make decisions on their own, they may need to have a formal decision maker assigned to them. This person can make decisions for them concerning all aspects of their life, such as entering a nursing home, selling a house, or gaining access to services. If they have appointed a legal representative with an Enduring Power of Attorney, that person will become the formal decision maker. When there is no legal representative and the person could potentially be harmed, an application can be made to the Queensland Civil and Administrative Tribunal (QCAT) to have a formal decision maker chosen. Anybody with a personal or professional involvement in the person's life can make an application to QCAT if they think the person has no capacity to decide for themselves, there is disagreement over a decision that needs to be made, or if they are at risk of abuse, neglect, or exploitation. In cases where QCAT believes there is no one suitable to take on the role in the person's life, the Public Guardian can be appointed for personal and/or health decisions, and the Public Trustee for financial matters.

Anyone with a personal or professional interest in a person’s life can make an application to QCAT if:

  • they believe the person doesn’t have capacity to make decisions for themselves

  • there is conflict over a decision that needs making

  • they are at risk of abuse, neglect or exploitation.

In some cases, QCAT may conclude that the individual does not have anyone in their life who is suitable for this position. Therefore, the Public Trustee may be appointed for financial matters and the Public Guardian for personal and/or health decisions.

Disputes Concerning Capacity to Make Decisions and Sign Documents

Legal capacity is the ability to:

  • make a binding legal agreement

  • sue another person

  • make other legal decisions.

To have legal capacity you must be able to understand the significance of what you’re doing.

if issues do arise regarding your decision-making capacity during your lifetime, having an up-to-date estate plan allows the people you trust to make financial and health-related decisions on your behalf.

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