For Senior Community Members
"As we approach later life we are faced with a myriad of decisions concerning our declining mental agility, accomodation issues and how to best manage our estate."
Broadly speaking, common concerns fall into three main categories - what accommodation options are available and for each, what are the pros and cons? What arrangements should be put in place for assisted or substituted decison-making and when is the appropriate time to consider these arrangements? And what can be done where there has been an instance of "elder abuse", causing either physical harm or financial misappropriation of the estate?
Accommodation concerns become a priority as the option of remaining in the family home becomes less viable with the onset of age or in the event of an injury.
Apart from the obvious lifestyle considerations, the ongoing financial implications of downsizing to smaller premises, entering into a 'granny flat' arrangement or moving to a retirement village, manufactured home park or residential aged care can be significant. It is important to as far as possible, maintain the value of the estate to ensure that there are sufficient funds available to meet ongoing living costs.
Today's estimated life span is significantly greater than for previous generations. An estimated 80% of retirees remain living in the family home while receiving the pension and there is a wide range of Commonwealth payments available to both elders and their carers. Moving out of the family home may affect these entitlements, with previously exempt financial assets now attracting 'deemed income' consideration.
Gifting - what are the implications?
Before gifting significant amounts, such as providing the deposit for a real estate property, paying out educational expenses, or covering the cost of a wedding or other family expenses, it is important to be fully aware of the financial implications of gifting, including the impact on social security and similar benefit scheme payments.
The Department of Human Services defines gifting as giving away or transfering assets to another party for less than their market value. Gifts also include for example, transfering an interest in units in a trust or company shares or the title to a real estate property and not receiving full market value, buying a motor vehicle for someone, or making a loan but not requiring that it be repaid.
Social security benefit recipients are obliged to disclose significant gifting within 14 days. There are rules limiting amounts gifted and ongoing benefit payments. A gift with value over the threshold amount is treated as a 'deprived asset' and subject to income test 'deeming provisions' for the ensuing five years.
Issues relating to capacity
Who should you appoint to provide assistance in the management of your affairs and/or to speak on your behalf or to make legally binding decisions on your behalf concerning property and other assets? Who should speak on your behalf and make decisions concerning your health and medical procedures? What are the necessary procedures to ensure that decisions made on your behalf are legally binding?
We can assist you in matters relating to the appointment of Enduring Guardianship, Power of Attorney and Advanced Care Directives, as well as the apppointment of a Financial Manager or Guardian.
Misunderstandings, breakdown of relationships or failure to honour or unintentionally resiling from a promise can often lead to situations where a family member or other party is left feeling aggrieved or in financially adverse circumstances.
Disputes can occur as family members seek to recover misappropriated funds following a premeditated breach of trust by a person entrusted with the care of the elder person, for their personal benefit.
Remedies are available to redress such situations by filing a claim in the Equity division of the Supreme Court. As with all grievances and disputes, we strongly recommend that every effort be made to resolve matters privately, either by informal negotiation or mediated settlement, other than by litigated process.