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Law for Elders

On this page

Power of Attorney

Most people sign what is known as an Enduring Power of Attorney.

With this document you empower one or more people to sign your name to and conduct all your legal and business affairs. Unless you impose any limits on this, that authority starts immediately and continues until you die. It continues even when you may be incapacitated physically or mentally, such as by a stroke or by senility. A General Power of Attorney does not work in those circumstances.

It is a very serious matter to appoint a Power of Attorney. You should consider the many options available to you before choosing who you appoint and on what terms. You should not proceed with a Power of Attorney if you have any doubts at all and should seek legal advice. Unfortunately lawyers deal with many situations where a Power of Attorney has been abused or has led to family disputes. Proper advice that takes into account your personal situation and careful legal drafting can help to avoid this.

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Enduring Guardian

An enduring guardian is someone you appoint someone to make medical and lifestyle decisions for you. These may include agreeing to medication, surgery, and other medical procedures and decisions as to where you should live.

Enduring means it continues (endures) when you are unable to make these types of decisions for yourself.

Acts, Regulations, Rules & Forms

Are you looking for detailed information like this, or contact details for any of the bodies mentioned on this page. If so, then start on our Elder Law for Lawyers page.

If it isn't there, then start on our Finding Detailed Legal Information page.

Please read our warning on that page "Be careful using these resources".

The Law is not always as straightforward as it appears. We have not included any information about when and how to use that information or any traps. We assume that the Lawyers will know this.

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Administration & Guardianship

When a person with a mental incapacity can no longer make decisions in certain areas of life, the Guardianship Division of NCAT can be requested to make an order appointing somebody else to do this on that person's behalf.

The causes of mental incapacity can include dementia, intellectual disability, brain damage, mental illness, coma or being in a moribund state, and this must affect the person's ability to make his or her own decisions.

The main orders the Board can make concern their guardianship, care, treatment, detention and control of their financial and legal decisions.

Resources

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Medical Directives

If you want to give specific directions for your treatment later in life without appointing an enduring guardian, then you may consider making a medical directive.

Unlike enduring powers of attorney and enduring guardianship, there is no special form that you must use. However, the NSW Department of Health has published Guidelines on using Advance Care Directives.

These guidelines recommend that an advance care directive should follow these four principles:

  • It needs to be specific - it can include your preferences for treatment for a health condition you have now or one you may develop in the future. It is a good idea to talk to your doctor about your wishes.
  • It needs to be kept current - your wishes may change in the future, so it is important to review your advance care directive regularly or if there is a big change in your health. It is a good idea to note on it when you last reviewed it and whether or not you made any changes.
  • You must be mentally competent - you can only make an advance care directive while you still have the mental ability to understand the choices you are making.
  • It is good idea to have it witnessed. If you choose to make an advance care directive as part of appointing an enduring guardian, it will need to be witnessed by a solicitor, barrister or Registrar of the Local Court. If you choose to make a -stand alone- advance care directive, you can choose who you ask to witness it.

You can also purchase a book Guidelines on using Advance Care Directives.

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Retirement Villages

Fair Trading - Retirement Villages has general information for the public.

See also Retirement Village Living: An overview of the NSW Retirement Village Laws.

Recent changes to the Retirement Villages Act include:

  • annual management meetings between operators and residents
  • annual safety inspections
  • a settling-in period for new residents
  • reducing the recurrent charges payable by a former occupant after vacating
  • encouraging operators to keep recurrent charge increases at or below the rate of inflation
  • increasing operators- accountability for budget deficits
  • ensuring urgent repairs are carried out quickly
  • cutting red tape for smaller village operators
  • improving the way residents committees operate and making it easier for more residents to be involved
  • giving residents the right to make reasonable alterations to their dwelling
  • better protection of refund entitlements for residents who do not have a registered interest in their dwelling.

NSW Civil and Administrative Tribunal (NCAT) deals with issues concerning residential leases. If they cannot help resolve a dispute, the Retirement Villages division of the CTTT can hear and determine applications about disputes between the retirement village operator and one or more residents.

Some early termination fees for loans made to enter a Retirement Village may no longer be enforceable. Seek legal advice.