Elder law is a broad area of law that focuses on issues that become more important as you age. The issues that are most common in this area of law relate to Wills and estate planning, the administration of personal affairs, long term health care issues, and elder abuse.

What is a Will?

A Will is a legal document which sets out how a person wishes for their estate (any personal effects, money, real estate and other property) to be distributed after their death. For a Will to be valid, the testator (person making the Will) must have capacity to understand the Will. The Will must be signed and witnessed by two people. The person who is responsible for gathering and distributing the assets is called the ‘executor’. A person can nominate anybody over the age of 18 years to be their executor.

Do I need a Will?

Having a valid Will means that your property and assets will be distributed after your death in accordance with your wishes. In addition, it makes the process of transferring your assets easier, quicker, and in some circumstances, with fewer fees for your family or executor.

What if I die and I don’t have a Will?

If you do not have a valid Will at the time you die, you will have died ‘intestate’. If this is the case, your property will be transferred according to the rules of intestacy rather than in accordance with your wishes. The rules of intestacy provide for transfer of property to spouses, children, parents, siblings, and aunts and uncles according to a specific formula.

Living Will

In addition to how your estate is to be dealt with in the case of your death, you may wish to consider creating an advanced care directive, also referred to as a ‘living will’. A living will includes details of your preferences for medical care in the event that you are unable to provide instructions or consent to those providing you with medical care.

Power of Attorneys and Enduring Guardians

In addition to having a Will, it is a good idea to appoint a Power of Attorney who is able to act on your behalf and make legal and financial decisions for you if you are unable to do so yourself. A person who is granted Power of Attorney is required to act in your best interests.

You may also wish to appoint an enduring guardian. An enduring guardian is able to make decisions about your medical care in circumstances where you are unable to do so yourself. Although it can be confronting, we recommend discussing your healthcare wishes with your guardian when you appoint them. You should only appoint somebody you trust to act in accordance with those wishes.

Succession planning

Succession planning in a family business, including farming and agricultural businesses, should address how an unexpected death, disability, divorce, or disagreement will be managed. While nobody expects or desires one of those situations to become relevant to their business, an appropriate plan detailing these circumstances can reduce the negative impacts, such as stress or financial impacts, for you and your family.

Beyond family members, a good succession plan can assist in protecting your employees, or any business partners you have. Our experienced lawyers can assist you with tailored advice to ensure that you have an appropriate succession plan in place.

Elder abuse

Elder abuse, which may be financial, social, psychological, physical, or sexual, is sadly becoming a pressing issue as our population ages. If you are concerned about how you, or somebody you know, is being treated by a family member, friend, or neighbour, our experienced lawyers may be able to assist.

Estate planning

Estate planning is an active process of evaluating and re-evaluating your assets, financial resources and circumstances throughout the many changes that occur in our lives. We need to consider how important lifestyle events can trigger the need to review and update our plans for the future, and our eventual death. Following are some of these events:

• marriage or divorce
• commencing a de facto relationship or even moving in together
• the birth of a child
• the death of a beneficiary named in your Will
• a change to the family’s asset pool
• receiving an inheritance or windfall
• the buying or selling of a business or shares in a company
• changes to superannuation, insurance policies or taxation level
• the need to protect vulnerable beneficiaries due to physical or mental illness, incapacity, drug, alcohol, or gambling addictions
• the establishment of discretionary or other trusts

If you need any assistance, contact one of our lawyers at [email protected] or call 02 6686 4233 for expert legal advice.