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LEGAL
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TIM COUCH B.COM, LLB, LLM (FAMILY LAW) FROM PRIEST LEGAL
PERSONAL LEGAL AFFAIRS – WHAT ARE THEY?
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hether you are already enjoying the freedom of your twilight years, or still in the weekly grind, working dawn to dusk providing for your family and trying to ‘get ahead’, it is vital that you have your personal legal affairs in order. Unexpected events or accidents can happen when you least expect them to – such as Covid-19 or floods or fire or just life in general. What do I mean by personal legal affairs? I mean having a Will in place to ensure your testamentary wishes are clear and you have provided for those closest to you. I mean appointing an attorney under a Power of Attorney and an Enduring Guardian to ensure your financial and personal needs continue to be met. Whilst it is very important to have these crucial documents in place, it is just as important to appoint the ‘right’ person to act as your executor, and attorney, and enduring guardian. Often people will appoint the same person or persons to act in each of these different roles. Depending on your circumstances, there may be good reason to appoint different persons to each important role. Even if you have these personal legal documents in place already, it is important that your documents are reviewed regularly to ensure they continue to meet your present needs, requirements and wishes. It is also just as important to consider whether the person or persons you currently have appointed remain the best fit for the job.
The Rise of Elder Abuse Elder Abuse is increasingly prevalent in our community. The Australian Institute of Family Studies reports it is likely that between 2% and 14% of older Australians experience elder abuse in any given year, with the prevalence of neglect possibly being even higher. Elder Abuse can take many different forms. The most common forms are financial abuse, neglect, and psychological abuse. Sometimes, various forms of elder abuse are occurring at the same time. It often starts by an elderly person reaching out and asking someone for help. The call for help is often to a child of the elderly person, but it might be a neighbour, another relative who lives close to you, or a close friend. The initial assistance the person provides is often relatively minor. The assistance is welcomed, and things are great. For example: “Why don’t I take you down to the shops every Tuesday so you can do your shopping?” Or, “Why don’t you just give me your bank card and I’ll withdraw money for you at the atm. It’ll save you the hassle of needing to leave home to go to the bank.” Over several months, or sometimes years, the ‘helper’ might gradually provide further support, whether or not further assistance was expressly asked for. Usually, it is an extension of the assistance they are already providing. Progressively, the elderly person has become very reliant on the ‘helper’, and more reliant than they probably ever expected to be. It is often at this point that a control element has well and truly settled in, and the elderly person is now stuck in a vulnerable position where they can be exploited by the ‘helper’,
often through financial demands, but also in other ways. An attorney must always act in your best interests and in accordance with the powers that you have given them. If this doesn’t happen, you can revoke the power if you still have mental capacity. But if you don’t have mental capacity anymore, you can end up at the ‘mercy’ of the Attorney and you will need to seek the help of other people to fix situation – other friends, family or institutions. Your friends or family can make an application to the Guardianship Tribunal for a power of attorney to be revoked and for an alternative attorney to be appointed. The application is free, and you don’t need a lawyer to represent you, but you might need some advice in relation to completing the application. An attorney cannot make decisions in relation to your health and where you live if you cannot make those decisions yourself. These decisions need to be made by an Enduring Guardian. This article highlights the need for all persons, not just the elderly, to make very wise and considered decisions in relation to who they might appoint as their executor, attorney, or enduring guardian, or who they might ask for regular financial and personal assistance. These matters can sometimes become complex. Frailty is real and it can be thrust upon us all at different times. If you would like some advice in relation to your personal legal affairs, or other legal matters, the legal team at Priest Legal are available to assist you. We are located at 41 Hay St, Port Macquarie or 49 Hastings St, Wauchope, or you can contact us to arrange an appointment on 6583 1777. GREATER PORT MACQUARIE
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