When to make an Advance Health Directive

While you are in good health, it is difficult to imagine that one day you may become incapable of making or communicating decisions about your medical care. But it can happen to anyone, at any time. A sudden illness or accident may temporarily or permanently leave you without the faculties to decide on your treatment options. This can put an overwhelming stress on family who are left to try and discern your wishes and balance decisions regarding such critical issues as prolonging life and relieving suffering.

Therefore, the right time to act to get your Advance Health Directive in place is while you are in good health – i.e., now!

No matter what age you are now or what health condition you are in, planning ahead with an Advanced Health Directive today may relieve a lot of heartache and difficulty for your family in the future.

It is also of particular importance for those people who may not have close family or friends to help them with these decisions should the need arise.

What an Advance Health Directive (AHD) covers

An Advance Health Directive allows you to plan what medical treatment or health care you would like if you cannot make decisions for yourself.  It also enables you to appoint an enduring attorney for personal and health matters if you wish.

You can use your directive to express your wishes in a general way, such as stating that you would want to receive all available treatment.

You can include relevant information about yourself that health professionals should know, such as special health conditions, allergies to medications and religious, spiritual or cultural beliefs that could affect your care.

You can give specific instructions about certain medical treatments. For instance, you might feel strongly about whether or not you want to receive life-sustaining measures to prolong your life such as heart resuscitation, assisted ventilation or artificial nutrition and hydration.

You can use your directive to outline your views about the quality of life that would be acceptable to you. For instance, you might decide to specify that you would like life-sustaining measures withheld or withdrawn in certain situations, such as if you were to have:

• A terminal illness for which there is no known cure nor chance of you recovering.
• Severe and irreversible brain damage so that you are unable to communicate.
• An illness or injury so severe that there is no reasonable prospect that you will recover.

Limitations of an Advance Health Directive

While an AHD does let you retain responsibility for your care, it is not an open-ended document with unlimited power. It allows you to give specifics on your treatment wishes in certain medical situations, but it does not allow you to make any illegal requests, and it cannot in any way allow you to request or give instruction on euthanasia.

Similarly, they do not allow you to make requests on issues of basic care, such as hygiene and food.

The AHD does not replace a clinical treatment plan, but rather provides a reference to inform the treatment plan developed by your medical professionals.

Enduring Powers of Attorney and Advance Health Directives

If you have an Enduring Power of Attorney for personal and Health matters, your attorney or attorneys are authorised to make health care decisions for you for similar matters as are covered by an AHD .

The major difference is that in an AHD you make the decisions now for the care you wish whereas in the power of attorney your attorney makes the decisions for you but only if you are unable to make that decision for yourself at the time.

Preparing an Advance Health Directive

When putting your AHD together, it makes sense to consult with family members so that they are aware of the thinking behind your preferences, as well as giving them the opportunity to talk through their concerns about your decisions.

It’s also necessary to involve your general practitioner so that they can explain the medical options to you, answer your questions and clarify any concerns you have from a medical perspective.

To find out more about whether an Advance Health Directive is right for you or any of our Aged Rights Law services, contact one of our experienced Aged Rights lawyers.

The decision to move into an aged care facility

No one, who has full capacity to make decisions, can be forced to move into aged care if they don’t want to. The decision to enter an aged care facility, and to remain there, sits with the older person (i.e., scenario 1 – Grace is within her rights to make the decision as to where she resides, even if she has had advice to the contrary).

However, if the person has impaired decision-making capacity, (as is possible in scenario 2), a substitute decision maker can decide to place the older person in a care facility. People can appoint their own substitute decision maker in an Enduring Power of Attorney document (provided they have capacity at the time of the appointment).

When there is not a current and valid Enduring Power of Attorney, the process of accessing Aged Care facilities may be delayed. A substitute decision maker can be appointed by the Queensland Civil and Administrative Tribunal (QCAT), but this may be a lengthy and emotional process.

A capacity assessment of the older person by a specialist doctor will be undertaken prior to an appointment by QCAT. A hospital, family member, social worker or another person cannot make an older person go into an aged care facility unless this process has been followed, or he/she makes their own decision to go.

Do I need to be assessed before I move into Aged Care?

To move into an aged care facility, the person will be required to undertake a free assessment with the Aged Care Assessment Team (ACAT). An ACAT member will assess whether they will be able to receive government-subsidised aged care services, and help identify what types of care they need or whether they can to stay at home. They will also discuss what options are available locally. A doctor or hospital can make a referral to an ACAT, as can the person themselves.

Types of Aged Care Arrangements

There are two types of aged care arrangements for older people who are unable to care for themselves and who cannot (or do not want to) live with family or friends:

1. Residential aged care in a residential aged care home
2. Home care package, which allows people to remain in their own home whilst receiving in-home care.

The options available will very much depend on the services available in the area in which the elderly person lives, and the level and amount of care they require.

An Aged Care Assessment Team (ACAT) from the Department of Social Services gives free advice on the options available to an older person in the area they live. The ACAT can help work out a person’s needs and make a referral to the appropriate services.

More information

To discuss a potential Aged Rights matter, or to understand more about an Enduring Power of Attorney, contact

Catherine Cheek (Special Counsel)
Phone: 07 4639 0358
email: ccheek@cp484.ezyreg.com

What are your rights?

A person’s rights do not diminish when he or she moves into a nursing home or hostel, regardless of his or her physical or mental frailty or ability to exercise or fully appreciate his or her rights. Everyone has a right to receive a service that is appropriate to their needs. For example, in scenario 1, John’s wife has the right to be taken to the toilet as needed and within a reasonable amount of time. She should not have to wait unnecessarily, causing distress or discomfort, and compromising her right to be treated with dignity.

No older person should be subjected to any form of abuse, often referred to as ‘elder abuse’, as suspected in scenario 2. Elder abuse can take various forms such as physical, psychological or emotional, sexual or financial abuse. It can also be the result of intentional or unintentional neglect.

There is legislation that protects people in aged care facilities and which imposes obligations on service providers. If the service provider breaches their obligations to an older person, then the person or their representative may complain. There must be an internal process within the facility for dealing with complaints. If the internal complaint resolution is not appropriate or the complaint is not dealt with favourably, you can contact the Aged Care Complaints Scheme.

What to do?

If you have any concerns or complaints regarding the provision of aged care services, you can contact the Aged Care Complaints Scheme, or if there are concerns about Elder Abuse, the Elder Abuse Prevention Unit.

You are also welcome to discuss a potential Aged Rights matter by calling Catherine Cheek (Special Counsel)

Phone: 07 4639 0358
Email: ccheek@cp484.ezyreg.com

More information

The people impacted by elder abuse are real people with real lives. They are our mothers and fathers, our aunts and uncles, our colleagues and neighbours. If you suspect someone you know is experiencing elder abuse, you have a responsibility to help.

If you are concerned about an elder’s welfare for any reason, or know people who are, please contact the Elder Abuse helpline (ph: 1300 651 192), which provides free assistance to anyone experiencing elder abuse, or who is concerned about someone they know. The helpline is operated by UnitingCare Community and funded by the Queensland Government.

To discuss a potential Elder Law matter, contact Catherine Cheek, who is experienced in Elder Law, for a free initial consultation.

Catherine Cheek (Special Counsel)
Phone:  07 4639 0358 
Email:  ccheek@cp484.ezyreg.com

What is financial abuse?

The Australia Human Rights Commission defines financial abuse as “when a person you trust uses that relationship of trust to gain access to your money or property”.   Financial abuse can include:

• Failure to repay loans to the older person;
• Living with the older person and refusing to contribute money for expenses;
• Forging or forcing an older person’s signature;
• Getting an older person to sign a will, contract or power of attorney through deception, coercion or force;
• Pressure to act as guarantor for a loan;
• Pressure to transfer or sell property;
• Pressure to give away money;
• Promising long-term care in exchange for money or property and then not providing the promised care
• Stealing from the older person;
• Misappropriation or misuse of money, property, assets;
• Coercing an older person to give away assets or gifts;
• Putting pressure on an older person to accept cheaper or lower-quality services to increase financial resources for beneficiaries upon the older person’s death;
• Misuse of powers of attorney, or
• Withholding funds from the older person or denying them access to funds.

Financial abuse can occur with other forms of abuse, such as physical abuse, sexual abuse, psychological abuse and neglect.

Protecting against financial abuse

The best way to safeguard yourself against financial abuse is to plan ahead, while you have capacity for decision making, by appointing someone to act as your attorney, through a financial Power of Attorney.

A Power of Attorney document gives your authorisation for an individual or individuals to act on your behalf when you no longer have the capacity to manage your financial affairs. You can prepare your Enduring Power of Attorney so it will only come into effect if you lose capacity for decision making.

If you decide to appoint two people you should be confident that they will not be in conflict about what is in your best interests. This person/s may not necessarily be an adult son or daughter.

The person/s you appoint as your attorney should be trustworthy, capable and financially literate. It is very important that you appoint someone who you trust will act in your best interests and who will not take advantage of their power.

Depending on the type of dementia and your personal circumstances, you may want to explore alternate options for banking and managing your financial affairs, particularly with increasing moves towards electronic transactions.

Some forms of financial abuse are criminal offences and in these instances you should contact your local police.

More information

If you suspect someone will dementia is being financially abused, or you would like to talk to an experienced aged rights lawyer about protecting your financial assets should you lose decision making capacity, contact:

Catherine Cheek
Aged Rights Lawyer
Phone:  07 4639 0357
Email: ccheek@cp484.ezyreg.com

Prevention of this type of abuse does not have a simple, one-action fix. There will always be people who can justify theft. In a world where people are increasingly personally isolated, formal protective measures are very important. The use of the Enduring Power of Attorney is one means of protection but it is only effective if the parties fully understand what the document means and that with great power comes great responsibility.

Making an Enduring Power of Attorney is an act of taking control – control over your life after you have ceased legally to be able to make decisions. It differs from an ordinary Power of Attorney in that respect because a Power of Attorney ceases to be effective once the Principal has lost legal capacity. Legal controls and restrictions on the actions of Attorneys exist and are enforced if the matter comes to the attention of a relevant court or tribunal. However, it involves an act of faith on the part of the Principal. Unlike a Will, an Enduring Power of Attorney gives discretionary power of one person over the life of another person because the Attorney is empowered to do most actions that the Principal could do for themselves. The Enduring Power of Attorney or EPA creates the Attorney Avatar.

EPAs are not just for the elderly. Any one of any age, without warning, can become incapable of making personal decisions regarding their health and finances.

More information

To discuss a potential Aged Rights matter, or to understand more about an Enduring Power of Attorney, contact:

Catherine Cheek (Special Counsel)
Phone: 07 4639 0358
Email: ccheek@cp484.ezyreg.com

Mark Orchard (Partner)
Phone:  07 4639 0358
Email:  morchard@cp484.ezyreg.com

Consider these situations

• An elderly couple sell their family home and invest the proceeds of sale in the construction of a granny flat at the back of a property owned by their daughter and her family.  Down the track, the daughter and her husband divorce, requiring the property to be sold.
• An elderly couple give money to their son to construct a granny flat at the back of his and this wife’s property.  The son passes away, leaving his interest in the property to his surviving wife.
• An elderly mother gives the proceeds from the sale of home to her daughter, so that she can build a granny flat in the home where she lives with her husband and children. The relationship between the elderly mother and her daughter breaks down.

In all of these situations, what return will the elderly parents receive? Only the cash contribution they made, or will they receive the benefit of any appreciated value because of market forces? Could a situation even arise where all of the money they contributed is put at risk?

What is a granny flat?

A granny flat is typically a self-contained unit within (or attached to) another home, often with the intent that the elderly resident can be close to family and help if required. Ideally, there needs to be a transfer of assets to the owner of the property in exchange for a life tenancy or interest in the property.

A granny flat arrangement does not necessarily require a separate residence – it just needs to be owned by someone else and you need to have established a “granny flat interest” (that is, a lifetime right to reside in someone else’s property arising from the exchange of assets or money).

It is important to distinguish a granny flat interest from an outright gift – there are various restrictions for gifting to family members (no more than $10,000 in a year unless they are given a granny flat interest).

Granny flat agreements

The trust that usually exists in family relationships often leads to arrangements between family members being made on an informal basis.  Sometimes, however, memories of the arrangement can be vague and disputes can occur, especially in relation to financial contributions when it is unclear whether the contribution is a gift or not, and when unexpected issues (such as those situations identified above) arise.

It is therefore recommended that all parties involved confirm the granny flat arrangement in writing, paying particular attention to possible scenarios that may arise, such as:

• What if we end up not getting along?
• What if my care needs change?
• If I need to go into a nursing home, what will the financial arrangement be?
• Am I sure that this is the best thing for me now and into the future?
• What if my family member’s marriage or partnership breaks down?
• What if the family is forced (or chooses) to relocate?
• Will I have my name on the certificate of title?

In documenting a granny flat agreement, it is recommended that you seek independent legal and financial advice.

Elder Law Disputes – what to do?

Getting legal advice as soon as a dispute arises is important. After seeking legal advice, mediation may be required to help resolve matters.

If court action is needed, it will be helpful if there is a good record of transactions, conversations, agreements, so make sure all documents are kept in a safe place.

More information

Matters involving family law or aged rights can be complex. If you do have an issue or concern that requires attention, or for more information on this topic, contact:

Mark Orchard
Family Lawyer
Phone:  07 4639 0358
Email:  morchard@cp484.ezyreg.com

Catherine Cheek
Aged Rights Lawyer
Phone:  07 4639 0357
Email: ccheek@cp484.ezyreg.com

When can I dispute a Will?

The time limit in which to make a claim is within 9 months of the date of death, but the estate may be distributed 6 months after the date of death if there is no notice of any application or intended application for family provision. Therefore, if you intend to make a claim against an estate, you should give notice of your intention to file an application for provision or further provision within 6 months from the deceased’s date of death.

It is at the Court’s discretion whether to extend the time after 9 months if it is satisfied that sufficient cause can be shown.

Who can dispute a Will?

A deceased person’s spouse, child or dependent, who considers that adequate support has not been made for his or her proper maintenance and support, can contest a Will.  Specifically, this includes:

• The wife or husband of the deceased at the time of death;
• A de-facto partner of deceased at time of death;
• A former legal spouse (must not be remarried and be receiving or entitled to maintenance OR be a parent of minor child of deceased and dependent at date of death);
• A child of the deceased;
• A step-child or adopted child of the deceased;
• A dependent of the deceased who at the time of death was wholly or substantially maintained or supported by the deceased and either a parent of deceased, parent of a child of deceased or person under 18;

On what grounds can I dispute a Will?

The court will consider a wide range of relevant factors when deciding if adequate provision has been made from the estate for your proper maintenance and support including:

• Your financial position, and specifically your financial needs relative to the value of the estate;
• Your health, family responsibilities and general circumstances.
• The size and nature of the deceased’s estate;
• The relationship between yourself and the deceased;
• The financial position, health and family circumstances of other persons who have a legitimate claim on the estate.
• The relationship the deceased had with other persons who have a legitimate claim on the estate.
• The financial position, health and family circumstances of the beneficiaries named in the Will in comparison with your own financial circumstances.

A will can also be challenged on the following grounds:

Undue Influence:  a Will may be set aside if it can be shown that undue influence has been exerted on the person making the Will.

Incapacity:  A person must have sound mind, memory and understanding to make a Will.  If a person lacks capacity to make the Will (i.e., they did not understand the nature and effect of their Will they were signing or were unable to make rational decisions about how their estate is distributed), the Will may be declared invalid.

Contract to make mutual Wills:  sometimes people may choose to enter into a binding contract to make their Wills in a certain way and not to change them. If they enter into such a contract and one of them later changes their Will without the consent of the other, any beneficiaries who miss out on their entitlement under the Will may be able to enforce the agreement and set aside the later Will made in breach of the agreement.

More information

This document contains only a brief summary of the laws about contesting an estate. If you have concerns that you have not been adequately provided for in a Will, and would like further advice please contact one of our experienced wills and estate planning lawyers.

David Whitehill
Phone:  07 3210 6500
Email: dwhitehill@cp484.ezyreg.com

Glen McCracken
Phone: 07 4639 0307
Email: gmccracken@cp484.ezyreg.com

Katie Cameron
Phone:07 4639 0323
Email: kcameron@cp484.ezyreg.com

PDF: Disputing a Will – Q&A

Responding to abuse of the elderly requires a very flexible and community based approach to accommodate the different types of abuse, various cultural groupings and the number of remote communities in Queensland.

June 15 marked the annual World Elder Abuse Awareness Day, which seeks to prevent elder abuse incidents by giving targeted information and encouraging community participation on a broad scale. The day is about all of us working together to bring greater recognition of the mistreatment of older people wherever they live, and to highlight the need for appropriate action.

So how can we all play a part in preventing abuse and neglect of the elderly?  If each of us behaves just a little bit differently, it is possible together, as a community, we could reduce the incidence of elder abuse. Here are a couple of suggestions that we could all taken on in our daily lives:

• Befriend an elder to decrease social isolation and vulnerability
• Check in with an elderly neighbour you haven’t seen in a while
• Take the extra minute to listen to an elder in a way that conveys compassion and willingness to hear their story
• Be on the lookout for an older friend or acquaintance who seems to be in a troubling situation but is reluctant to answer questions about it. If he or she appears hungry, unclean, frightened of his or her caregiver, is frequently bruised, ill, neglected, or often confused, this may indicate abuse.

More information

The people impacted by elder abuse are real people with real lives. They are our mothers and fathers, our aunts and uncles, our colleagues and neighbours. If you suspect someone you know is experiencing elder abuse, you have a responsibility to help.

If you are concerned about an elder’s welfare for any reason, or know people who are, please contact the Elder Abuse helpline (ph: 1300 651 192), which provides free assistance to anyone experiencing elder abuse, or who is concerned about someone they know. The helpline is operated by UnitingCare Community and funded by the Queensland Government.

To discuss a potential Elder Law matter, contact Catherine Cheek, who is experienced in Elder Law, for a free initial consultation.

Catherine Cheek (Special Counsel)
Phone: 07 4639 0358
Email: ccheek@cp484.ezyreg.com