Introduction
Our legal needs change over the course of our lives. Elder law is an area of legal practice that focuses on issues that affect the ageing population. Elder law generally describes the laws relating to powers of attorney, wills, guardianship and retirement. One of the purposes of elder law is to prepare elderly people for financial freedom and autonomy through proper financial planning and long-term care options. This chapter is committed to a range of issues that are especially relevant to older Canberrans, including: - Enduring Powers of Attorney - Advance Care Planning - Guardianship and Financial Management - Elder abuse - Retirement Villages Unfortunately older persons may be find themselves in a position of some vulnerability. Sadly it is not uncommon for older persons to be exposed to psychological, financial and physical abuse. There are, however, steps that people can take to help protect them against the risk of harm. Some of those steps are discussed in this chapter.Wills and Estates
Wills and Estates are discussed in another chapter (see Wills and Estates).Enduring Powers of Attorney
An Enduring Power of Attorney is a legal document by which a person (the Principal) appoints another person or people (the Attorney) to act on their behalf or to make decisions for them if they lose capacity to make decisions for themselves. Enduring Powers of Attorney are different from General Powers of Attorney. General Powers of Attorney only give the Attorney the power to act on the Principal’s behalf as directed while the Principal has capacity. In contrast, Enduring Powers of Attorney endure a loss of decision-making capacity. General Powers of Attorney and Enduring Powers of Attorney are governed by the Powers of Attorney Act 2006 (ACT) (http://www.legislation.act.gov.au/a/2006-50/). General and Enduring Powers of Attorney must use the form approved by the ACT Legislative Assembly. The most recent Enduring Power of Attorney form was updated on 8 March 2017 (http://www.legislation.act.gov.au/af/2017-45/default.asp). The General Power of Attorney form has not been updated since May 2007 (http://www.legislation.act.gov.au/af/2007-54/default.asp). Enduring Powers of Attorney must be witnessed by two adults (who are not appointed as Attorneys). One witness must be a person authorised to witness the signing of a statutory declaration. The witnesses are effectively confirming that the Principal understands the nature and the effect of the document and has the mental capacity to decide to sign it. Attorneys are required to sign the document to accept their appointment. Their signatures are not required to be witnessed by anyone. Attorneys can opt to take legal advice on their obligations under the document.Who can be appointed as an Attorney and how are they appointed?
A Principal can appoint one or more people to act as their Attorney. An Attorney must be over the age of 18. A person who is bankrupt cannot be appointed in relation to property and financial decisions. A Principal can also appoint different people as Attorneys for different types of decisions. A Principal can also appoint a substitute Attorney (or Attorneys) to act if the primary Attorney is unable or unwilling to act. This is commonly used by couples who appoint each other as their primary Attorney and then their children as their substitute Attorneys. It is always best to choose an Attorney who is trustworthy and who will respect the Principal’s wishes. Often people appoint family members and close friends. Attorneys can be appointed together, separately or together and separately. If more than one person is appointed, the Enduring Power of Attorney must specify how decisions are to be made. That will be either together, requiring Attorneys to make unanimous decisions, or separately, in which case Attorneys can make decisions independently. If Attorneys are appointed together they must all act jointly at all times. This provides accountability and scrutiny between Attorneys but may be impractical or inconvenient if Attorneys live interstate or overseas. If Attorneys are appointed separately they do not need to act together and can separately make decisions and sign documents. This may be convenient, as only one Attorney needs to sign documents and Attorneys can allocate tasks between themselves. This may put the Principal at a disadvantage because each Attorney can act unilaterally with limited accountability. If the Attorneys do not cooperate they may make conflicting decisions which may require external intervention to resolve. The Principal can elect whether to allow their Attorneys to delegate their power to someone else who is not appointed as a primary or a substitute Attorney. The Principal can give the power to delegate generally or name people who they are happy with their Attorneys delegating their power to.Types of decisions Attorneys can make and when they can start acting
An Attorney can be given the power to make decisions in relation to: - property and finances (see section 10 of the Powers of Attorney Act 2006 (ACT) for the types of decisions); - personal care (including deciding where the Principal lives) (see section 11 of the Powers of Attorney Act 2006 (ACT) for the types of decisions);When does a person have ‘impaired decision-making capacity’?
The common law presumption is that all adults have capacity. Therefore, for an Enduring Power of Attorney to be fully operative it needs to be established that the Principal has impaired decision-making capacity. A person has impaired decision-making capacity if the person ‘cannot make decisions in relation to the person’s affairs or does not understand the nature or effect of the decisions the person makes in relation to the person’s affairs’ (see section 9 of the Powers of Attorney Act 2006 (ACT). Capacity is decision specific. A person might, therefore, have capacity to make one decision but not others. For example, they might have capacity to decide how to manage their finances on a day to day basis but not decide whether to enter into more complex financial transactions. A person is not taken to have impaired decision-making capacity only because the person makes unwise decisions (see section 91 of the Powers of Attorney Act 2006 (ACT). There is no standard form required to be completed which says when a person has lost capacity. A medical certificate from a General Practitioner stating that the Principal has, or does not have, decision-making capacity either generally or in relation to a particular matter on the day or during the period is usually sufficient. In some cases a report from a psychiatrist, psychologist, neuropsychologist, psychogeriatrician, geriatrician, gerontologist, neurologist or Aged Care Assessment Team may be required. Lack of capacity may be due to brain injury, intellectual disability, mental illness or neurodegenerative deceases (e.g. Alzheimer’s, dementia). There a number of red flags which suggest that a person might not have capacity to make a decision: - a diagnosis which affects capacity; - memory loss or difficulty with recall; - ongoing difficulty communicating; - disorientation and confusion; - lack of mental flexibility/inability to solve problems with simple calculations; - being withdrawn or a deterioration in personal presentation or mood; - lacking motivation; - anxiousness; - inability to understand simple questions and respond; - inability to make decisions; - inability to pay attention; - limited ability to interact with the people and professionals (i.e. solicitor); and - changing solicitors many times over a short period or changing solicitors from a longtime family solicitor for no apparent reason.Contacts and further resources
- ACT Law Society: https://www.actlawsociety.asn.au - Access Canberra: https://www.accesscanberra.act.gov.au/app/answers/detail/a_id/2097/~/deed-registration-including-powers-of-attorney - Powers of Attorney Act 2006 (ACT): http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/act/consol_act/poaa2006240/s91.html - Peisah and O’Neill- Capacity and the Law (Second Edition)- http://austlii.community/wiki/Books/CapacityAndTheLaw/ - NSW Government Attorney General’s Department- Capacity Toolkit: http://www.justice.nsw.gov.au/diversityservices/Documents/capacity_toolkit0609.pdf - Queensland Law Society- Queensland Handbook for Practitioners on Legal Capacity: https://www.qls.com.au/Knowledge_centre/Ethics/Resources/Client_instructions_and_capacity/Queensland_Handbook_for_Practitioners_on_Legal_Capacity - NSW Law Society- When A Client’s Mental Capacity is in Doubt: https://www.lawsociety.com.au/cs/groups/public/documents/internetcontent/1191977.pdfAttorney’s obligations
An Attorney should read the Enduring Power of Attorney document in full and understand the obligations of an Attorney. There can be serious consequences if an Attorney fails to comply with his or her obligations. For example, an Attorney can be held personally and criminally liable for losses. Attorneys must follow certain decision making principles. Some of the principles are located at Schedule 1 of the Powers of Attorney Act 2006 (ACT). Among other things, Attorneys must: - act honestly, diligently and in good faith; - exercise reasonable skill and care; - take professional advice (if necessary); - avoid acting where there is, or may be, a conflict of interest (unless the enduring power of attorney specifically authorises the Attorney to act in a conflict); - unless otherwise specified, only use the principal’s money for their benefit and not for the Attorney’s benefit; - keep accurate records and accounts of all financial dealings; - keep the Principal’s property separate from the Attorney’s property; - give effect to the Principal’s wishes, as far as they can be worked out, unless making the decision in accordance with the wishes is likely to significantly adversely affect the person’s interests; - support the Principal to take part in decisions to the greatest extent practicable; and - interfere with the Principal’s life (including the person’s lifestyle) to the smallest extent necessary. Attorneys must not: - use the position for profit (unless the Enduring Power of Attorney specifically authorises the Attorney to be paid); - disclose confidential information (unless authorised by the Enduring Power of Attorney or by law); and - access what the Attorney believes to be their inheritance prior to the Principal’s death (this is sometimes referred to as ‘inheritance impatience’ or elder abuse (see Elder Abuse, this chapter)).Further resources
- Powers of Attorney Act 2006 (ACT): http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/act/consol_act/poaa2006240/s91.htmlAdvance Care Planning
Advance care planning is a series of steps that can be taken to plan future health care. The aim of advance care planning is to promote autonomy and dignity. There are three documents in which people can record health care choices:- Enduring Power of Attorney (a legal document);
- Advance Care Plan Statement of Choices (non-legal document); and
- Health Directive (a legal document).
Enduring Powers of Attorney
An Enduring Power of Attorney is the legal document that gives a decision maker (the Attorney) the legal authority to act for a person (the Principal) and to make legally binding decisions on the Principal’s behalf (see, Enduring Powers of Attorney, this chapter). Advance Care Plans and Health Directions are optional documents and can provide additional directions to the Attorney. If the directions are inconsistent, the Attorney is bound by the most recent document. The Principal can also insert any directions, limitations or conditions in relation to health care matters in the Enduring Power of Attorney.Advance Care Plan Statement of Choices
An Advance Care Plan records a person’s wishes and values regarding future medical treatments. It provides the chosen decision makers and doctors with information for treatment if a person is no longer able to make decisions. An Advance Care Plan can deal with: - what ‘living well’ or an acceptable recovery/reasonable outcome means; - choices about life prolonging treatment; - choices about CPR; - requests about medical treatments; - people to be included in decisions about healthcare; and/or - things that are important when nearing death (e.g. care of a pet, religious or spiritual rituals, cultural customs, messages for family and friends). Because an Advance Care plan is not a legally binding document, people with impaired decision-making capacity can still make Advance Care Plans.Health Direction
A Health Direction allows a person to legally direct their Attorney in relation to their future health care decisions. For example, a Health Direction can require an Attorney to refuse, withhold or withdraw treatment of a particular kind. (See Health Law chapter).Contacts and further resources
- Medical Treatment (Health Directions) Act 2006 (ACT): http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/act/consol_act/mtda2006322/ - Powers of Attorney Act 2006 (ACT): http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/act/consol_act/poaa2006240/ - ACT Health Respecting Patient Choices: Advance Care Plan Program, PO Box 11, WODEN ACT 2606. - ACT Health: http://www.health.act.gov.au/public-information/consumers/advance-care-planning - Advance Care Planning: https://www.advancecareplanning.org.au/ - Be My Voice: http://www.bemyvoice.com.au/Guardianship/Financial Management
If a person has not appointed an Attorney, the Attorney is acting improperly, or there is a dispute amongst appointed Attorneys, the ACT Civil & Administrative Tribunal (ACAT) (through its Guardianship Division) (https://www.acat.act.gov.au/application-type/guardianship), may authorise a person (named a Guardian or a Financial Manager) to make decisions on behalf of an adult person (named the Protected Person) whose decision making ability is impaired. Orders can be sought by anyone with an interest in the welfare of the Protected Person. The person seeking to be appointed must be over the age of eighteen years. The powers of Guardians and Financial Managers are governed by the Guardianship and Management of Property Act 1991 (ACT).Appointment and role of Guardians
The ACAT may appoint a Guardian if it is satisfied that the person for whom the Guardianship order is sought: - is suffering from a condition that impairs their decision-making ability in relation to a matter relating to their health or welfare; and - there is or is likely to be a need for a decision in relation to that matter or the person is likely to do something that involves unreasonable risk to their health, welfare or property; and - if a guardian is not appointed the person’s needs will not be met or their interests will be significantly adversely affected. If a person has made an Enduring Power of Attorney, their needs may be met and their interests might be protected by that document. The ACAT must be satisfied that the person nominated for appointment is suitable and can discharge the responsibilities of a Guardian. A guardian may be a family member or friend. Where no suitable person is available the Tribunal can appoint the ACT Public Trustee and Guardian (https://www.ptg.act.gov.au/guardianship). When considering the suitability of a proposed Guardian various factors listed in section 10 of the Guardianship and Management of Property Act 1991 (ACT) must be considered by the ACAT. These include: - the views and wishes of the Protected Person; - the Guardian should be available and accessible to the Protected Person; - the Guardian must be able to ensure that their own interests and duties do not conflict with those of the Protected Person to the detriment of the Protected Person; - the criminal history of the proposed Guardian; - whether the proposed Guardian has been made bankrupt. The Tribunal can appoint one or more people as Guardians. An order made by ACAT can specify that the Guardians must act jointly or whether they can act separately when necessary. A Guardian may be appointed to do things like: - decide where and with whom the Protected Person is to live; - decide what education or training the Protected Person is to receive; - to decide whether the Protected Person is allowed to work and if so, the nature of the work, the place of employment and the employer; - to give a consent required for a medical procedure or other treatment (other than a prescribed medical procedure); and/or - to bring or continue legal proceedings for, or in the name of, the Protected Person. A Guardian cannot do things like: - discipline the Protected Person - vote in an election; - make a will or other testamentary instrument; - consent to the adoption of a child; - give a consent to a marriage; and/or - give a consent required for a prescribed medical procedure. Guardians are required to follow the decision-making principles. These are similar to the Attorney’s obligations addressed above and are located at section 4 of the Guardianship and Management of Property Act 1991 (ACT). The appointment of a Guardian continues until: - the death of the protected person; - revocation of the Guardianship order by the ACAT; - the guardian resigns in writing; - the guardian is removed by the ACAT because they are no longer suitable or competent, or have neglected to perform the duties and functions of a Guardian or have contravened a provision of the Act. The appointment of a Guardian can be reviewed at any time on the application of anyone with an interest in the welfare of the protected person. In addition the ACAT must review appointments at least once every 3 years. The ACAT website (https://www.acat.act.gov.au/application-type/guardianship) provides more information about how applications for Guardianship orders are made and how the ACAT makes Guardianship decisions.Appointment and role of Managers
A Manager may be appointed to manage the property of a Protected Person where the ACAT is satisfied that the person for whom the management order is sought: - is suffering from an impaired decision-making ability in relation to a matter relating to the Protected Person’s financial matters or a matter affecting the Protected Person’s property; - there is or, is likely to be, a need for a decision in relation to a financial matter; - there is, or there is likely to be involved, unreasonable risk to the Protected Person’s property; and - if a Manager is not appointed the person’s needs will not be met or the person’s interests will be significantly adversely affected. The Tribunal must be satisfied that the person nominated for appointment is suitable and can discharge the responsibilities of a Manager. A Manager can be a family member or friend. A Manager may also be the ACT Public Trustee (https://www.ptg.act.gov.au/guardianship) or a trustee company. Where no suitable person is available to act as manager, the Tribunal can appoint the ACT Public Trustee as Manager. In considering the suitability of a proposed Manager various factors listed in section 10 of the Guardianship and Management of Property Act 1991 (ACT) must be considered. These include: - the views and wishes of the Protected Person; - the Manager’s should be available and accessible availability and accessibility to the Protected Person; - the Manager must be able to ensure that their own interests do not conflict with those of the Protected Person to the detriment of the person; - the criminal history of the proposed Manager; or - whether the proposed Manager has been made bankrupt. The ACAT may appoint one or more people as joint managers. An order made by the Tribunal can specify that the managers must act jointly or separately if required. The appointment of a Manager by the Tribunal means that the Protected Person is not legally competent to enter into transactions relating to property over which the Manager is given authority. For example, the Protected Person no longer has legal capacity to enter into contracts, pledge credit or deal with property over which the Manager is given authority. The Manager may enter into such transactions if they are in the best interests of the Protected Person. The Manager’s action has effect as if the Protected Person had entered into the transaction themselves. If a Protected Person does enter into a contract then it is voidable (see section 71). The appointment of a Manager continues until: - the death of the Protected Person; - revocation of the management order by the Tribunal; - the Manager resigns in writing; or - the Manager is removed by the ACAT because they are no longer suitable or competent or have neglected to perform the duties and functions a Manager or have contravened a provision of the Act. On the anniversary of the appointment of a Manager, the Manager must file accounts and other documents relating to the management of the Protected Person’s property with the ACT Public Trustee for examination. The accounts must clearly indicate the financial position of the protected person. The Public Trustee will audit the accounts. Some cost may be incurred in the audit. The Tribunal may direct a manager to produce accounts and documents. If it is considered necessary, the Tribunal may order that the manager have the accounts and documents audited by a person or organisation specified. The ACAT website (https://www.acat.act.gov.au/application-type/guardianship) provides more information about how applications for Management orders are made and how the ACAT makes Management decisions.Contacts and further resources
- Guardianship and Management of Property Act 1991 (ACT) - ACT Civil and Administrative Tribunal (Guardianship Division): https://www.acat.act.gov.au/application-type/guardianship) - ACT Public Trustee and Guardian: https://www.ptg.act.gov.au/Elder Abuse
Elder abuse, as described by the World Health Organisation, is ‘a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person’. The Australian Network for the Prevention of Elder Abuse defined elder abuse as ‘any act occurring within a relationship where there is an implication of trust, which results in harm to an older person. Abuse can be physical, sexual, financial, psychological, social and/or neglect.’ It is relevant that all definitions of elder abuse state that the abuse occurs in a relationship of trust. There is no accepted age at which a person becomes an ‘elder’. The Australian Concise Oxford Dictionary definition of elder includes ‘persons of greater age or seniority’, ‘persons venerable because of age’ and ‘a person advanced in life’. The Federal Government’s 2007 report Older People and the Law uses the term ‘older Australians’ when referring to persons aged 65 years or over . It has also been suggested that Aboriginal and Torres Strait Islander people can be considered ‘elder’ at a younger age. There are a number of reports and studies addressing the prevalence of elder abuse in Australia and internationally. Elder abuse largely occurs within families and adult children are the most common perpetrators. The World Health Organization has estimated that the rate of elder abuse in high and middle-income countries ranges from 2% to 14%. According to the ACT Legislative Assembly, people aged 60 years and over in the ACT are expected to increase from 15.8% in 2010 to 19.6% by 2020 and 22% by 2030. Australia’s population is aging and growing. As a result elder abuse is expected to increase. Elder abuse is thought to be largely underreported. This might be because: - few people are aware of their rights; - pursuing civil legal remedies through litigation requires an older person to have the funds to pay for legal fees; - the special needs of the complaint means there is an inability to access support, including physically or mental inability to report; - older persons may be reluctant to implicate family members in legal processes through initiating civil action or reporting criminal behaviour, particularly where a person is dependent upon family members for accommodation, care and support. - abuse brings feelings of shame and guilt. - there may be a fear of retribution. - coroners are not looking for elder abuse being a possible cause or contributor to death. - the elder person relies on their family for care and support and reporting may result in collateral damage such as guardianship or institutionalisation and removal of autonomy. - privacy law means a lack of sharing between organisations. - people do not want to draw attention to their family or implicate family members;Types of abuse and signs of abuse
Elder abuse can take various forms, such as physical abuse, psychological or emotional abuse, financial abuse, sexual abuse and neglect. Psychological and financial are the two most common types of abuse. Psychological abuse can include: - verbal abuse, name-calling, bullying and harassment; - treating an older person like a child; - threatening to withdraw affection; - threatening to put them in a nursing home; and - stopping an older person from seeing family and friends. Signs of psychological abuse include withdrawal, paranoia and anxiety. Financial abuse can include: - incurring bills for which an older person is responsible; - stealing money or goods; - abusing power of attorney arrangements; - refusing to repay a loan; - living with someone without helping to pay for expenses; - failing to care for someone after agreeing to do so in exchange for money or property; and - forcing someone to sign a will, contract or power of attorney document. Signs of financial abuse include: - disappearing belongings - inability to pay bills - significant withdrawals of cash - changes to a Will - stock piling bills - no food in fridge - cancelling community services Physical and sexual abuse can include: - pushing, shoving and rough handling; and - sexual assault. Neglect includes failing to provide someone with such things as food, shelter or medical care.Who is at risk and how do you prevent abuse?
Some risk factors include: - social isolation because of language, dependency on family or cultural issues; - having one carer who suffers ‘carer fatigue’; - having diminished capacity and, therefore, being unable to advocate; - being part of a dysfunctional family; and - having a limited understanding of financial matters. Abuse can be prevented by: - seeking legal advice from qualified lawyers when doing Enduring Powers of Attorney (who can assist people to appoint trustworthy and honest Attorneys and include safeguards in the document); - doing a Will (earlier rather than later) so that there can be no question of influence. - seeking independent legal advice when giving loans / gifts or entering into family care arrangements and document the arrangements - seeking independent legal advice when signing significant documents- (i.e. property Transfers); - having regular engagement with friends, family and neighbours; - staying socially connected and active in community groups; and - finding an advocate, for example:- an Attorney
- ATACAS (ACT Disability, Aged, and Carer Advocacy Service)
- Centrelink financial services
- ACT Office for Women / Women’s Legal Centre / Canberra Community Law
- Aged Care Complaints Commissioner
- ACT Human Rights Commission
- Abuse Prevention Referral Line (APRIL)
- Legal Aid
- Police
Current state of the law in the ACT
There are no specific laws dealing with elder abuse in the ACT. There are some Federal laws which address elder abuse. For example, under the Aged Care Act 1997 (Cth) approved residential aged care providers are obliged to report alleged or suspected assaults in aged care facilities funded by the Commonwealth to the police and to the Commonwealth Department of Health and Ageing. The complaint must relate to an approved provider’s responsibilities under the Act or the Aged Care Principles. Legislation and common law provide some protection against certain forms of elder abuse. Equity, through the mechanism of the constructive trust, can provide relief in some circumstances to vulnerable older persons. Relevant equitable remedies include constructive trust, account of profits, tracing, rescission and specific performance (see, for example, Johnson v Buttress (1936)56 CLR 113 and Commercial Bank of Australia v Amadio [1983] HCA 14; (1983) 151 CLR 447). Actions for damages are available in tort law for injury suffered as a result of abusive conduct. Elder abuse may amount to offences against the person (such as assault, sexual assault, stalking and negligent manslaughter) and offences against property (such as stealing and fraud). While these offences are applicable to the general population regardless of the age of the victim, they are often aggravated due to age. That is, the circumstance of an older person or a person with impaired capacity as the victim tends to be an aggravating factor which the courts take into account when sentencing. There is no discrete offence in the ACT. In some jurisdictions neglect is addressed in criminal law. See, for example, the Criminal Code 1899 (Qld) offences of ‘duty to provide necessaries’ and ‘failure to supply necessaries’ (see sections 285, 290 and 324). These offences impose a duty on someone who has charge of another person who is unable to provide themselves with the ‘necessaries of life’ to provide care. Domestic violence legislation in some jurisdictions also makes orders available for abused persons within family relationships and informal care relationships.Approach to Elder Abuse in the ACT
While there are currently no laws in the ACT specifically relating to elder abuse, there are some protections available in the Human Rights Act 2004, Human Rights Commission Act 2005, Discrimination Act 1991, Domestic Violence and Protection Orders Act 2008, Guardianship and Management of Property Act 1991, Powers of Attorney Act 2006, Public Trustee Act 1985, Public Advocate Act 2005, Legal Aid Act 1997, Health Records (Privacy and Access) Act 1997, Crimes Act 1900, Victims of Crime Act 1994, ACT Mental Health (Treatment and Care) Act 1994, Health Act 1993, Health Professionals Act 2004 and the Emergencies Act 2004. Key ACT agencies with statutory responsibilities include the Public Advocate of the ACT, Public Trustee for the ACT, ACT Civil and Administrative Tribunal (Guardianship Division), Health Services Commissioner, Aged Care Complaints Scheme, ACT Policing and the Victims of Crime Coordinator. The ACT Legislative Assembly’s response to elder abuse has been at its own initiative. - In 2001 the ACT Standing Committee for Health and Community Care conducted an inquiry into elder abuse. In response the Assembly allocated funding to develop a program to respond to elder abuse. - The Elder Abuse Prevention Project was funded to provide a multifaceted approach to addressing elder abuse in the ACT and provided a telephone information and referral service, a community awareness media campaign and a Training Manual and Information Kit for professionals. - In 2008 the ACT Elder Abuse Prevention Program was reviewed. - The ACT Strategic Plan for Positive Ageing 2010-2014 committed to reducing elder abuse. - In February 2012 the ACT Elder Abuse Prevention Program Policy was released.- The ACT Office for Ageing within the Community Services Directorate is responsible for the governance, coordination and strategic direction of the ACT Elder Abuse Prevention Program. The Office for Ageing is advised in this role by the Elder Abuse Prevention Network and the ACT Ministerial Advisory Council on Ageing (MACA).
- MACA consists of up to 12 representatives appointed by the Minister for Ageing to assist the ACT Government to develop and implement positive ageing policies which advance the status and interests of older people in the ACT. MACA is responsible for monitoring the effectiveness of the ACT Elder Abuse Prevention Program and providing high level advice to the Minister for Ageing. MACA is represented on the Elder Abuse Prevention Network.
- The Elder Abuse Prevention Network provides strategic advice on systemic issues relating to elder abuse and the co-ordination of services that support older people. It does not respond to individual cases of abuse. The Network consists of representatives of Government and non-government agencies who have a role in preventing abuse and neglect of older people in the ACT. The Network is guided by a Terms of Reference and managed by the Office for Ageing.
Contacts
- ATACAS (ACT Disability, Aged, and Carer Advocacy Service: http://www.adacas.org.au/ - COTA: https://www.cota.org.au/ - Centrelink financial services: https://www.humanservices.gov.au/individuals/services/financial-information-service - ACT Office for Women: http://www.communityservices.act.gov.au/women/office_for_women - Women’s Legal Centre: http://womenslegalact.org/ - Aged Care Complaints Commissioner: https://www.agedcarecomplaints.gov.au/ - ACT Human Rights Commission: http://hrc.act.gov.au/ - Abuse Prevention Referral Line (APRIL): http://www.communityservices.act.gov.au/wac/ageing (Phone (02) 6205 3535) - Legal Aid: http://www.legalaidact.org.au/ - ACT Policing: https://police.act.gov.au/Further resources
- Australian Law Reform Commission Elder Abuse—A National Legal Response (ALRC Report 131 https://www.alrc.gov.au/publications/elder-abuse-report) - House of Representatives Report Older People and the Law ( https://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=/laca/olderpeople/report.htm) - ACT Elder Abuse Prevention Policy Program- https://www.communityservices.act.gov.au/__data/assets/pdf_file/0004/317605/Elder_Abuse_Prevention_Program_Policy_2012_FINAL_2.pdf). Australia’s population is aging and growing. As a result elder abuse is expected to increase. - World Health Organisation: http://www.who.int/ageing/projects/elder_abuse/en/Retirement villages
In the later years of life, people may be required to find alternative accommodation which provides them with higher levels of care than can be provided in the home. Retirement villages are complexes, or parts of complexes, comprising residential premises (other than residential aged care facilities covered by the Commonwealth Aged Care Act 1997) predominantly or exclusively occupied by seniors. You do not have to be retired to enter into a village. Access Canberra has published a list of retirement villages (https://www.accesscanberra.act.gov.au/ci/fattach/get/49007/1437019222/redirect/1/filename/Retirement+villages+in+the+ACT.pdf). Entry into a village is usually for those over 55 years of age. The average resident’s age is somewhere in the low to mid-seventies, with the average entry age being in the mid to high sixties.Legal Structures
There are a number of legal structures for retirement villages in Australia, including: - Long-term lease - Long-term licence - Residency tenancy agreements - Strata title - Community title - Company title - Unit title - Manufactured home - Conventional Lease Common structures in the ACT are loan-licence agreements, unit titled retirement villages and other types of agreements. Loan-licence agreements typically involve the payment of an ingoing contribution (or loan) by a resident for the right to live in the premises on a long-term or permanent basis. The resident is typically entitled to a refund of the ingoing contribution minus exit fees payable on vacation of the premises. Some agreements also provide for a proportional share of the capital gain of the unit to be kept by the resident upon sale. In unit titled retirement villages residents own their unit. Residents are bound by the same requirements under the Unit Titles (Management) Act 2011 (ACT) (http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/act/consol_act/uta2011243/) as other unit owners in terms of ownership and maintenance of common property and must comply with the rules of the owners’ corporation. Some residents obtain their right to live in a retirement village under a residential tenancy agreement (under the Residential Tenancies Act 1997 (ACT)) on a short term or long term basis. This is the same as leasing a house or a unit on a private commercial basis. Some not-for-profit organisations that operate retirement villages sometimes offer low-cost rental options for some residents. Retirement villages in the ACT are regulated by the Retirement Villages Act 2012 (ACT) (http://classic.austlii.edu.au/au/legis/act/consol_act/rva2012217/). The Act governs: - what information a prospective resident must receive before signing a village contract; - what must be included in the village contract; - what cannot be included in the village contract; - how much time prospective residents have to consider the village contract before signing it; - the settling-in period; - residents’ rights; - what are common property and capital items in a retirement village; - who is responsible for the cost of maintenance or the replacement of capital items; - the rights and obligations of village residents; - the rights and obligations of the operator; - how residents provide input; - how a village contract can be terminated; and - how are disputes are resolved.Financial considerations
Residents are usually required to pay: - an initial entry fee when moving in; - rent and/or recurring service charges during the stay and perhaps beyond; and - a departure fee, deferred management fee, or exit fee upon departure. The costs will depend upon the particular legal structure of the retirement village. With each village there will also be a Management Agreement to be entered into between the village and the resident. This Agreement will set out things like service charges paid by the resident to live in the village.Obtaining legal advice when entering a village
Legal documentation for retirement villages is often long and complicated. It also varies from village to village depending on the structure. It is important to obtain legal advice on the documents. The documentation may also have financial implications that are not envisaged. For example, there are different departure fee structures associated with each village and it is important that residents fully understand the financial consequences for leaving the village. Solicitors can also work with financial planners and accountants to ensure that retirement village living is affordable. The ACT Law Society can recommend solicitors experienced in this area.Contacts and further resources:
- Retirement Villages Act 2012 (ACT) - ACT Law Society: https://www.actlawsociety.asn.au/ - Access Canberra: https://www.accesscanberra.act.gov.au/ci/fattach/get/49007/1437019222/redirect/1/filename/Retirement+villages+in+the+ACT.pdf - Retirement Villages Canberra: https://www.villages.com.au/retirement-villages/act/canberra
Copyright © by the contributing authors. All material on this collaboration platform is the property of the contributing authors. Ideas, requests, problems regarding AustLII Communities? Send feedback
This website is using cookies. More info.
That's Fine