The Canberra Hospital argued that it did not breach its duty of care to the young woman and that it had an excuse from being found negligent under a law that says that the obligations of the hospital were limited by the funding and other resources reasonably available to it. There was no evidence provided by the hospital about its ability to provide additional nursing staff, that the man could not have been placed in another ward, that it could not provide an emergency warning system or that there was a shortage of beds.

Queensland has similar laws to the ACT about the limits of public authorities.

Justice Elkaim decided that the hospital had been negligent because the hospital had allowed the young woman to be “exposed” to a “foreseeably dangerous person”.

If something like this has happened to you or someone you know, or you have had a bad hospital experience, you may like to contact Catherine Cheek of our office. She has years of experience in advising people in this area of law.

Two recent cases

Case 1

As a result of a motor vehicle accident, the Plaintiff suffered a neck injury and was subsequently diagnosed as having developed a disc bulge at C3/4 with degeneration at that site. The Plaintiff is a young man of “limited skill and education”. He was employed on a traineeship at the time of the accident and took very little time away from work. His employment was terminated just over 2 years after the accident at the end of his traineeship. He claimed future loss of earning capacity.

The Plaintiff’s Facebook page revealed complaints of overwork and considerations of applying for a new job about 12 months after the accident. The court considered that this attitude was more likely to be as a result of his youth than his injury. The Plaintiff’s Facebook entries revealed a number of sick days which had followed social events where alcohol consumption was referred to. Although the court found that the Plaintiff was “generally motivated to work”, based on the Facebook entries, he was indifferent to his job. The court noted that, despite a general openness in discussing his personal life on Facebook, the Plaintiff did not report difficulties associated with his neck injury on that site.

The court made a modest award for future economic loss, having concluded that the Plaintiff’s “generally limited skills, a competitive labour market, his youth, his relative inexperience and a generally declining local economic environment” contributed more to his difficulty in finding employment than his neck injury.

It is apparent from the judgement, that impressions of the Plaintiff’s character were formed, not just from personal evidence, but from information he chose to reveal about himself in a public forum. Plaintiffs, as well as other witness, will experience hurdles with credibility where the two sources of information are not consistent.
Goodfellow v Clarke and Ors.

Case 2

The Plaintiff was employed as a pastry worker at a small biscuit shop. On 22 December 2011, the last day of work for the year before the business had a compulsory shutdown, the Plaintiff told the business owner that she was leaving, that this would be her last day, and that she was confident of getting a job in veterinary nursing (which was her preferred career).

The owner offered the Plaintiff the opportunity to take on casual shifts until she found work as a veterinary nurse. As events transpired, the Plaintiff did not find a veterinary nursing position and she returned to work some casual shifts when the business reopened on 23 January 2012.

On 3 February 2012, the business owner sought a commitment from the Plaintiff that she would work there for several months so they could secure staffing levels and plan future recruiting requirements.
The Plaintiff subsequently made an application for an unfair dismissal remedy in the Fair Work Commission, claiming she was dismissed without notice on 3 February 2012. At first instance, her claim was successful. The Commission found that she, as a permanent (rather than casual) employee as at 3 February 2012, had the right to continue in her employment without the need to give the commitment sought by the business owner on that date.

The Commission found that the business owner’s conduct on 3 February 2012 constituted a repudiation of Ms McDonald’s contract of employment because it established that the business was only prepared to continue her employment relationship if the Plaintiff gave that commitment, which would result in her forgoing her statutory rights.
On appeal, the Full Bench considered the Plaintiff’s contemporaneous Facebook postings during the period 22 December 2011 to 1 February 2012, as these posts were indicative of her state of mind as to her employment.

“Last day of work for the year! Hello Vet Nursing next year! =D (hopefully if all goes well)”
“Things are okay there, lol. I’m actually leaving and doing vet nursing. Just waiting to hear back from some places. Don’t feel like my future is in hospitality anymore!”
“I’m switching to Veterinary Nursing. Over hospitality. Waiting to hear back from some people so fingers crossed.”
“Pastry is a hobby, not a career I have decided.”
“Just don’t know what to do. Should I go for the job I would love and go broke in the process? Or find another?”
“Want a job soon otherwise I won’t survive long.”

The Full Bench held that these posts were “fundamentally inconsistent” with the Plaintiff’s evidence that she was dismissed without prior notice on 3 February 2012, and that rather, the posts suggested that she considered herself jobless at that time and needing to find another job.

Ultimately, in finding that the Plaintiff was not unfairly dismissed, the Full Bench found that collectively the entries on her Facebook page “fundamentally corroborate the employer’s case” and that she “did not provide a satisfactory explanation for the inconsistency between these Facebook posts and her version of events.”
Il Migliore Pty Ltd v Kelly McDonald

More Information

For dispute resolution and litigation queries or advice on your litigation matter, please contact Catherine Cheek at Clewett Lawyers.

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

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