Legal Check Up for the Elderly

Have you noticed a few worrying signs lately with your loved ones as they get older? Just little things such as decline in physical or cognitive health, slight memory loss or difficulty doing everyday tasks can be a sign that your loved ones may need some extra support with their affairs.

Have you noticed a few worrying signs lately with your loved ones as they get older? Just little things such as decline in physical or cognitive health, slight memory loss or difficulty doing everyday tasks can be a sign that your loved ones may need some extra support with their affairs.

This may be the opportune time to do a legal check-up to make sure everything is in place in the event of a hiccup or a medical event.

There are number of issues that need to be addressed when undertaking a legal check-up in these circumstances.

The main things you need to think about are:

Wills;

Enduring Powers of Attorney;

Appointment of a Medical Decision Maker; and

If required, Advanced Care Directives.

Wills

Firstly, you need to locate the current Will to make sure it up to date and all relevant parties are provided for. If the Will is for more than 10 years old or if you have any doubt about its validity you should consult your lawyer to make sure it is still relevant and is compliant.

As a rule, a Will should be reviewed every 5 years.

Enduring Power of Attorney

For those who are not familiar with an Enduring Power of Attorney (EPA), this document gives another person authority to sign documents and make decisions in relation to financial and personal matters on donor’s behalf.

Again, as with a Will, you should make sure you can locate the original document and that it is up to date. If the document was made more than 10 years ago or if you have any doubt about its validity, again, you should consult your lawyer to make sure it is still relevant and is compliant.

Appointment of a Medical Decision Maker (Medical Power of Attorney)

This document, which is more commonly referred to as a Medical Power of attorney, is used to appoint a person to make medical treatment decisions for a person in the event that that person is unable to make the decision for themselves. It doesn’t give the decision maker (or attorney) unlimited authority, the decisions are made under the directions of a medical practitioner.

Again, as with Wills and EPAs, you should locate the original document and if you have any doubts as to its validity you should consult a lawyer.

Advanced care directive

This is a comprehensive document which deals with the specific type and the extent of medical treatment a person requires to be provided in the event of a terminal illness or a life-threatening event. This document is prepared with the assistance of a medical practitioner.

It is important that you discuss this document with your loved ones as some people have very strong views regarding what treatment they receives in these circumstances. If you require any further information or advice about this document, it is recommended that you consult your regular GP.

General Information

When reviewing a Will, EPA or Medical PA it is important to establish if the Executor, Attorney or Decision Maker named in the document are still alive or they still have the capacity to undertake the duties required of them in this role. If not, a new document, or a variation of the document, will need to be done.

If the document was made a long time ago, it is quite likely that the children of the person making the document will not named as the legal representative or the current representative is now quite old and may not be able to undertake the roll required of him or her.

If the person in question has a spouse or partner and children, it’s usually the case that the spouse or partner will be the primary or first appointed representative and the child or children the secondary or backup representative.

If there is no partner/spouse or children, it is recommended that closest relative, who is local and accessible, be appointed as the legal representative.

It is strongly recommended that these documents be kept together in a safe place, preferably with your solicitor or in your safe deposit box at your bank. A Solicitor usually doesn’t charge to keep documents in safe custody for you.

It is also recommended to keep a certified copy of these documents in an accessible place in case you are required to produce a copy with short notice. A solicitor or a Justice of the Peace can arrange for these documents to be certified for you.

Other things you might need to turn your mind to

In circumstances of sole ownership of assets or blended families it is important to ensure that the assets are held correctly i.e. tenants in common or joint names.

Arrangements for beneficiaries with special needs

In these cases, separate provision should be made in the Will to ensure that assets are set aside in trust for the beneficiary in question.

Succession of Trust or Company assets

Trust and Company assets do not form part of a person’s estate and therefore cannot be bequeathed under a will. The Trust and Company documents should be reviewed to ensure that the succession of these assets align with the provisions of the Will. Also, provision should be made in the will for the transfer of control of the company and trust.

Distribution of Superannuation and/or Insurance proceeds

Likewise, Superannuation and Insurance proceeds do not form part of a person’s estate and therefore cannot be bequeathed under a will. These documents should also be reviewed to ensure that these proceeds are distributed in accordance the owner’s wishers.

Special Family arrangements

Where there are special family arrangements, such as prior loans and gifts to family members, special provision should be made in the Will to take these into account.

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