Elder Law


We help older people who are considering moving into a retirement village understand your legal rights and the impact on your future estate. We will help you manage the transition to your new home.

What’s Elder Law?
Elder law is a combination of areas of law with a focus on the older community. It involves Family Law, Conveyancing, Contract Law, Property Law and Estate Planning. There are concerns that are prevalent in the older community and we can provide assistance and understanding to ensure that you are informed and can make decisions regarding your legal position.

Retirement villages, what do we need to consider?

Moving into a retirement village, what things do I need to consider?
There are a number of things that you need to consider when looking at moving into a retirement village. These include the initial contribution, departure fees, tax implications, capital gains tax sharing, lifestyle choice and investment decisions.

What is the Initial contribution?
Residents that are moving into a retirement village may be asked to pay an initial contribution. This may take various forms being the purchase price, a licence fee, loan or lease which is basically equivalent to the purchase price of the property, however you may not own the property as a result of this transaction, you may just have a right to live in it for a period of time. It may be that you are required to pay a bond and you do not have any ownership rights to the property at all, but simply permission to live in the property until you either move elsewhere or pass away. It is important to understand that there may be a portion of the initial contribution that is outside the loan or lease calculation and is not refundable. The ongoing contributions may be refundable in certain circumstances.

What are departure fees?
This is often referred to as the deferred management fee. This fee is payable out of the refund of the resident’s initial contribution. These fees are set by each village and vary considerably. In addition, the departure fee may not include any recurring charges that will be charged during your stay in the Village. The departure fee is normally calculated as a portion of the initial contributions.

What is capital gains sharing?
This is where the capital gains liability for your unit (when you leave the unit either through choice, necessity or death) is split between you or your estate and the operator. These schemes vary in formulation and may have an impact on you estate. If you are considering moving into a retirement village as an investment strategy there could be negative consequences due to capital gains sharing and as such an alternate strategy may meet your needs best. We will work with your accountant or financial planner to assist you in deciding what options are the best for you.

Helping the family financially?

Do I give money or act as guarantor for my child?
If your child has asked you to provide a guarantee or provide your house as security for a loan you need independent advice about why this might be necessary and what the possible costs to you will be. It is possible that the bank has refused to lend the money without the security. The main reason for this is that the bank has concerns about the ability of the person to repay the loan. It is important to know that if you do provide the guarantee you may lose your home. We are able to advise you on your legal rights but it is important that you speak to us before you sign the documents.

Do I need legal advice?
Bank documents and loan documents can be extremely hard to understand and most banks will require you to obtain independent legal advice. If you are uncertain of the meaning of the document or the effect of the document it is important that you speak to a lawyer. We will meet you on your own to ensure that you understand the effect of the document. Do not rely on your child explaining the document to you as they may not understand the full effect on you. This is important as you could be risking your house; it could be sold leaving you with nothing.

Lending money – is it a gift or a loan?
It is important that all parties understand the basis for the money that you are providing. If they were borrowing money from a bank they would expect to sign a legally binding loan document. Just because they are borrowing from you doesn’t mean that you can not protect your interest in the money. We can assist in drawing up loan documents that will protect your interest and provide a favourable loan to your child.

If I give money or take a mortgage over my home will that impact my pension?
This may impact on your pension and it is important to get information on this prior to gifting money.

Spending time with the grandchildren?

I want to spend more time with my Grandchildren, what can I do?
The Family Court may be able to assist you in spending more time with your grandchildren where the parents of your grandchildren have separated. When making decisions about the amount of time you spend with your grandchildren the court will take into account the following:

  1. Primary considerations – These are the first matters the court will consider and they include the benefit to your grandchild of having a meaningful relationship with both parents and the need to protect your grandchildren from physical or psychological harm and from being subjected or exposed to abuse, neglect or family violence.
  2. Secondary considerations – These are considered next and include: the views of the child, the nature of the relationship between parent and child, the willingness and ability of each parent to facilitate and encourage a meaningful relationship between the child and the other parent, the child and significant person in their life, the likely effects of a change in living arrangements on the child, difficulty or expense involved is spending time with your child, the maturity and sex of the child, the parents attitude to parenthood and family violence.

Parenting orders can be made by consent and these can include time being spent with the Grandparents. These are called consent orders. Alternatively, where no consent is reached, a final hearing (trial) may need to be held and the Judge or Federal Magistrate will impose court orders on the parties to the matter. These orders, whether made after a hearing or made by consent, are binding on all parties including any named grandparents. Once the orders are made it is important that the orders are complied with. If you do not comply with the orders you will be breaking the law.

I’m concerned about the environment where my Grandchildren are living, what can I do?
Safety is one of the primary considerations that the court takes into account when determining or approving parenting orders. It is important that you express your concerns to your lawyer to ensure that the court if fully aware of the situation. This will allow the court to make the necessary orders to protect your child.

Planning for the future?

Batey’s Family Lawyers can help you set up the necessary documents to cover you in times of need.

Will

Who needs a Will?
If you have any property you need a Will. If you are married you need a Will. If you have loved ones that you want to look after once you are gone you need a Will.

How long will my will last?
Your Will lasts forever unless it you revoke it by a new will or you get married.

What happens to my will if I get married?
If you get married your will is automatically revoked and you will need to make a new will. There are ways to prevent this automatic revocation so contact our office to discuss your needs.

What happens to my will if I get divorced?
If you get divorced your will remains valid however all references to your ex-spouse will be assumed to have been erased. For most people, this will mean their will is ineffective and it has the same effect as if there was no will at all.

Power of Attorney

Who needs a Power of Attorney?
You should nominate a power of attorney. Particularly, you should have a power of attorney if you:

Are going to be away for an extended period of time; or
You want to make sure that your family and friends can manage your finances and legal rights in the event of an accident or if something happens and you are unable to make these decisions for your self.
What is a Power of Attorney?
A Power of Attorney is a very important document. It provides for a person that you choose (who is called your Attorney) to be able to act for you in relation to your financial affairs and legal rights and responsibilities.

What can my Attorney do?
This depends on any restrictions that you place on your Attorney. The restriction can be used to limit what your Attorney can do for you. For example you might limit it to allow the attorney to pay household expenses and repairs while you are on holidays only or you could make it so that your Attorney can exercise all your legal rights and deal with all of your financial affairs such as buying and selling your property or taking or defending legal action in your name.

When can I appoint a Power of Attorney?

You can appoint a Power of Attorney at any time once you are over the age of 18 but you must be mentally capable of making and understanding the impact and seriousness of the power that you are giving. If you do not have the mental capacity you are unable to appoint an Attorney.

When does my Attorney get this power?
The Power of Attorney document will specify when your attorney gets the power. If you were going on a holiday and wanted your attorney to look after your property while you were away you could limit the power to a specific date range. You can make the power available to the Attorney immediately or you could make it available on a triggering event such as loss of health or mental capacity.

How long does my Attorney have the power to act for me?
This depends on a number of things. If you appoint an enduring power of attorney, then your Attorney will have the power until such time as you recover from your ailment and can make these decisions for your self. If you do not recover, then your Attorney will exercise this power until you die. You can revoke this power whilever you have the mental capacity to do so. If you only appoint an Attorney for a set period of time, the power is automatically revoked at the expiration for that time frame or if you lose mental capacity.

Enduring Guardianship

Who needs an Enduring Guardian?
You should appoint an enduring guardian. You should particularly appoint an enduring guardian if:

  1. You are in a relationship – if you have a serious accident and are unable to provide doctors with the necessary authority, they may not be able to operate on you, provide you with medical or dental treatment or make decisions around life support. An Enduring Guardian is able to give that approval to the doctors on your behalf.
  2. You are an older person who may need assistance now or are planning ahead to ensure that trusted family or friends are able to make decision s if the time comes, about where you should live or what personal services you might need to receive such as home care or meals on wheels.

What is an Enduring Guardianship?
An Enduring Guardianship is a very important document. It provides authority for a person that you choose (who is called your Guardian) make decisions for you in relation to your physical needs and where you will live in the event that you are unable to make those decisions.

What can my Guardian do?
Your Guardian can give approval to a doctor to operate on you if you are not able to give the authority yourself. This is vital for every one no matter how old you are. Your Guardian can make decisions about what medical treatment you receive, where you live, what personal services you may receive such as meals on wheels and other services that help you stay in your own home.

When can I appoint an Enduring Guardian?
You can appoint an Enduring Guardian at any time, but you must be mentally able to make do so and must understand the impact and seriousness of the power that you are giving. If you do not have the mental capacity you are unable to appoint an Enduring Guardian.

When does my Enduring Guardian get this power?
The Enduring Guardian document will specify when your guardian gets the power. The power will be given to your guardian when you are unable to make the decisions on your own due to a mental or physical condition.

How long does my Enduring Guardian have the power to act for me?
The power will last as long as it is required. You can only remove the power from your Guardian while you are mentally able to do so.