News & Interest

Financial powers of attorney – a trap!

Often a person making a financial power of attorney appoints two or more persons to act jointly. (more…)

Pens – what colour?

Pens – what colour is acceptable to sign a legal document?
We recently had a client who urgently contacted us saying that she had signed a document with a green pen, and was this alright.
We entered into a bit of an email exchange about this, but we advised her that we knew no rule of law that said anything about the colour, or for that matter, the type of pen that must be used to sign a document.
So, a document will not be invalidated because ink other than blue or black is used, or for that matter a lead pencil is used.
You could also sign in blood – this would not invalidate the document.
There are however some rules of practice that, for instance, are adopted by courts or other government bodies. For example, Wills should be signed by the Willmaker and the two witnesses using the same pen – but this is not a rule of law and a Will signed using different pens will not be invalid (although it may be more difficult to prove that it was validly executed with the two witnesses present with the Willmaker). We think also that the New South Wales Titles Office insists upon black pens being used.
Our own preference is to use blue ink. This is so as to more easily distinguish between the original document and a photocopy. Photocopies/scans these days are so good that it is often difficult to determine whether they are copies or originals if black ink was originally used (at least for black and white prints). The blue ink will immediately tell you which is the original.
We are looking forward to receiving the green ink signed document in the post. When someone tells us that you cannot do that we will be asking for the legislative provision that says we cannot. It will be difficult to find.
© Peter Gauld LL.B.
Peter J. R. Gauld LL.B
Gauld & Co. Elder Law Solicitors
Suite 5, 1st Floor,
838 Glenferrie Road,
Hawthorn, Melbourne, Australia, 3122.
03 9024 3868
0401 230 711
gauld.co@gmail.com

VCAT – applications for administration and guardianship

VCAT has power in some circumstances to make an order that a person be represented by another person.

It can make either an administration order or a guardianship order, or both.

Administration orders are akin to financial powers of attorney.

Guardianship orders are akin to guardianship powers of attorney.

Just like powers of attorney, VCAT can impose restrictions and limitations on the powers it gives to administrators and guardians.  The principal consideration of VCAT is that it will make the least restrictive orders possible, recognising that the represented person should be able to make as many decisions about him or herself as possible.

The threshold issue for VCAT is whether the person has a “disability”.  This is defined as “intellectual impairment, mental disorder, brain injury, physical disability or dementia”.

Without a finding that a disability exists, VCAT cannot make orders.

Very often relatives of persons with a disability must go to VCAT for such orders because there is no existing power of attorney, and the person no longer has the capacity to make one.

Going to VCAT is a fairly cumbersome process and can involve cost if lawyers are involved, so best practice is to have both a financial and a guardianship power of attorney in place – both can be expressed, if desired, to only take effect when incapacity arises.

 

©

Peter J. R. Gauld LL.B

Gauld & Co. Elder Law Solicitors

Suite 5, 1st Floor,

838 Glenferrie Road,

Hawthorn, Melbourne, Australia, 3122.

03 9024 3868

0401 230 711

gauld.co@gmail.com

June, 2013, Melbourne, Victoria.

Wills – gifts to children/grandchildren

Leaving gifts to children in Wills – something quirky:

In Victoria if you leave a share of your estate to a child, and say nothing further, if that child dies before you the gift will pass to that child’s children, your grandchildren.

You may or not intend this, but the law, the Wills Act (Victoria), provides that this will happen unless you specifically express a contrary intention.

© Peter Gauld LL.B.

Peter J. R. Gauld LL.B

Gauld & Co. Elder Law Solicitors

Suite 5, 1st Floor,

838 Glenferrie Road,

Hawthorn, Melbourne, Australia, 3122.

03 9024 3868

0401 230 711

gauld.co@gmail.com

Invalid Wills

At a recent Wills session for the Salvation Army we were asked on a couple of occasions whether changing address invalidates a Will.

It does not.

Wills are actually drawn so that they last a long time. There are only three main things that may invalidate a (non-fraudulent) Will – marriage (with some exceptions), the willmaker not having the capacity to make the Will (dementia, etc) and improper signing.

Proper signing of a Will is particularly important. There are a precise set of rules about how a Will should be signed and witnessed. Play safe, see a solicitor. A Will is a very important document.

© Peter Gauld LL.B.

Peter J. R. Gauld LL.B

Gauld & Co. Elder Law Solicitors

Suite 5, 1st Floor,

838 Glenferrie Road,

Hawthorn, Melbourne, Australia, 3122.

03 9024 3868

0401 230 711

gauld.co@gmail.com

Digital assets

Planning for the administration of digital assets by your executor after death is becoming an increasingly complex and pressing problem.

What does an executor do with an online bank account? First, the executor has to know that it exists. If all records are kept either online or in computer files, this becomes very difficult. Increasingly, organisations are providing clients/customers with relevant information about their accounts by email only.

Most email services have good search facilities. If you conduct a search on words like “Commonwealth Bank”, “accounts”, “shares”, etc, you may find a great deal about relevant assets. But what if you do not have the password for the deceased’s email account?

Is there an eBay account? Is there a Facebook account? Are regular direct debits from the deceased’s accounts continuing to be made?

These examples are only scratching the surface of the digital world, and the associated problems with it. It is an almost insoluble problem for solicitors engaged in estate planning. Even if a client gave their solicitor a complete list of digital information, passwords, etc, it is very unlikely indeed that this information would be fully accurate six months later, let alone a decade or more.

Technical solutions might emerge with the passage of time, but at present there are no easy ways for a legal representative, such as an executor, to identify and administer many, if not most, digital assets.

 

© Peter Gauld LL.B.

Peter J. R. Gauld LL.B

Gauld & Co. Elder Law Solicitors

Suite 5, 1st Floor,

838 Glenferrie Road,

Hawthorn, Melbourne, Australia, 3122.

03 9024 3868

0401 230 711

gauld.co@gmail.com

“Peppercorn” bequests in Wills

Can a “peppercorn” bequest prevent a Will challenge?

It is often thought that leaving a very small bequest to a beneficiary will have the effect of preventing that beneficiary making a challenge to the Will.

This is not the case. It has been held by the courts that “peppercorn” bequests do not have the effect of preventing a person from seeking a court order that more adequate or proper provision be made for them.

So, a term in a Will like – “I leave a dollar to my son William” will not prevent William from making a (potentially) successful challenge. The challenge might not be successful on other grounds, but the defence cannot be based simply on an allegation that some provision has been made in the Will albeit small.

Court made Wills

In some circumstances the Supreme Court can make a Will for a person who lacks testamentary capacity.

This power is given to the court in the Wills Act (Vic.).

Such Wills are sometimes referred to as “statutory Wills”.

The court has the power to make a Will which reflects the intentions of the disabled person and “what the intentions of the person might reasonably be expected to be”.

The quoted part of the last sentence comes from the legislation itself and seems to allow a Will to be made by the court for a person who has lacked testamentary capacity from birth. In such a case it might be impossible to ascertain what the intentions of the person might be. Compare this with the situation in which a person has lost testamentary capacity in an accident and there might exist evidence of what that person’s intentions about his or her estate were.

The provisions are sometimes used when unsuitable beneficiaries might otherwise benefit from the estate when there is no Will. When there is no Will (called intestacy) a person’s estate will be distributed according to a formula in legislation. This result could be seen to be inappropriate in a situation where a person’s brother, for example, had been convicted of stealing that person’s assets during his or her lifetime and would otherwise take the entire estate upon an intestacy.

There are many other situations where injustice might result if an estate were left according to a strict statutory formula.

The court also has the power to revoke an existing Will of a person now lacking testamentary capacity. Again, allowing an existing Will to stand might result in substantial injustice in a situation where the person has lost the capacity to revoke his or her Will.

Retirement village contracts

Retirement village contracts are a bit like marriage – they are a little bit harder to get out of than to get into.

There is a variety of what are compositely called “exit fees” that will apply when leaving the village.

These fees are uniquely applicable to retirement village contracts. They are not found in more “normal” contracts for the purchase and sale of residential homes, and as such often catch people by surprise.

For the most part the fees are non-intuitive – they don’t seem to make a lot of sense. For example, in almost all retirement village contracts there will be what is usually called a deferred management fee. This fee is usually expressed to be a fixed percentage per annum of occupation. The deferred management fee might be, for instance, 3% per annum for a maximum of 10 years. Using this example, if you were in occupancy for 10 years you would have 30% deducted from your initial ingoing purchase price.

One would be forgiven for questioning the fairness, or sense, of this, given that there are also weekly or monthly service fees to be paid during the entire period of the occupation.

There can be a variety of other exit fees. One sees contracts with up to five separate categories of exit fee. One of the other common exit fees is the refurbishment costs.

Most of these fees can be calculated precisely at the time of signing the occupancy contracts. It is this firm’s practice to provide potential purchasers with a spreadsheet showing, as far as possible, what will be involved in terms of exit fees when the purchaser leaves the village. This often causes some significant surprises. But it is best to be forewarned.

A person entering a retirement village should have in mind that they could lose up to 30% or more of their initial ingoing purchase price in exit fees.

It is all there in the contractual documentation, often buried in fine print, and often very difficult to decipher even for solicitors.

It is best at the very start to know what it is going to cost to get out.

Family Agreements

Family agreements, or more colloquially ‘granny flat agreements’ are predicted to become a more and more important part of the aged care landscape in the future.

The harsh economic reality over the next 40 years is that governments simply won’t be able to continue to fund aged care the way they do now. The Federal government currently spends $6 billion per annum on aged care. The number of people requiring aged care of some kind is predicted to triple by 2050 because of changing population demographics.

Innovative ways are going to have to be found by governments to fund aged care and one way may well be to provide taxation and other incentives, for, especially, children to become more involved in the care of their elderly parents.

For children to be involved in the care of their parents, forward planning and economic planning become essential. What sort of accommodation will be provided? What sort of care will be required in the short and long term? Will one of the children have to give up work to provide the care? How is the child to be compensated? Who is going to pay for a granny flat or other home renovation? What is the effect of this expenditure in relation to inheritance issues? How does expenditure by the parent affect pension entitlements?

These and many other important questions have to be considered.

The difficulty that has arisen is that very often such arrangements are not formalised into an agreement. This inevitably leads to conflict within the family.

The other difficulty is that informal arrangements very probably have no legal significance. There is a presumption at law that agreements between close family members, or arrangements between them, are not intended to be legally binding.

In order to avoid the conflict that can arise within families from these care arrangements, especially when large sums of money have been spent, it is essential that a formal documented agreement be created. The agreement should set out exactly what is understood between the family members and what will happen in most of the predictable scenarios that might arise in the future.

A properly prepared agreement, in consultation with all relevant family members, will mean that all of the family has had a chance to think about the issues involved and to understand what will happen in the future. This will in turn mean that there is far less scope for later disagreement.

Those families who are considering arrangements of this kind are very strongly advised to formalise the arrangement in a written document, and to resist the understandable reluctance to do so on the basis that the law has no place in family arrangements. The law does have a place – often large sums of money are involved, pension entitlements may be affected, and issues of inheritance arise. A common sense and practical approach to this now could well avoid some even larger (legal!) problems later on.

 

© Peter Gauld LL.B.

Peter J. R. Gauld LL.B

Gauld & Co. Elder Law Solicitors

Suite 5, 1st Floor,

838 Glenferrie Road,

Hawthorn, Melbourne, Australia, 3122.

03 9024 3868

0401 230 711

gauld.co@gmail.com

Retirement village contracts

There was a recent article in the Age newspaper about some of the legal consequences of getting into and out of retirement villages.

A spokesman for the Residents of Retirement Villages Victoria was interviewed and was complaining particularly about some of the unfair practices adopted by village owners prior to 2006 legislative changes. For instance, prior to the changes owners could contract to hold onto the sale proceeds of a retirement village unit for up to 8 years (!) thus depriving the (elderly) seller of the use of this money, and the interest earned on this money. Also mentioned was the practice, which still applies, of village management being placed in charge, sole charge, of selling the unit when the resident wishes to move on.  This can lead to conflicts of interest that can be financially disadvantageous to the seller.

Although some of the more undesirable practices were outlawed by the 2006 changes, those changes were not made retrospective, and there are very many contracts still in existence formed prior to 2006.

Although it is almost impossible to have a retirement village contract changed (although this firm has been able to do so) it is still much better for the retiree to go into these things fully informed. Unfortunately, many solicitors don’t know an awful lot about the pitfalls that can happen with a retirement village contract, and they will often treat the matter as a normal conveyancing transaction. The fact of the matter is that many retirement village contracts do not involve the conveyance of land at all. Many contracts just provide a licence or lease to occupy.

I pointed out in an email to the Residents of Retirement Villages Victoria that even a widely used (and very good) Manual on conveyancing written by a Victorian solicitor, Russell Cocks, does not cover retirement village contracts that do not involve the transfer of land. Russell Cocks simply says that these other contracts do not fall into the category of conveyancing and are accordingly outside the scope of his Manual.

Prospective entrants into retirement villages simply have to find expert legal advice. It may well be that the local solicitor is so busy with “normal” conveyancing that he or she doesn’t have the time to properly consider and advise on these lengthy and complex contracts.

©Peter J. R. Gauld LL.BGauld & Co. Elder Law SolicitorsSuite 5, 1st Floor,838 Glenferrie Road,Hawthorn, Melbourne, Australia, 3122.03 9024 38680401 230 711gauld.co@gmail.com

Challenging a Will (in Victoria)

The law relating to Wills, and estate administration, is State based. Each State has its own legislation. Although there are many similarities between the States’ laws, there are also many differences. This article relates to Victoria only.

In Victoria, anyone can challenge the provisions of a Will if that person believes that he or she should have been included as a beneficiary in that Will, or should have been more adequately provided for in that Will. Accordingly, the ability to challenge a Will is not limited to family members.

The fundamental test adopted by Victorian courts is whether the Will maker had a moral obligation to provide for the person challenging.

Although this may sound fairly straightforward, the law involved and the reasoning used by the judges is quite complex.

The person challenging does not necessarily have to show any particular need. The Victorian courts have found that close relatives who are in no particular financial need can successfully challenge. However, a child or other relative (or any other person) of the Will maker who does have a specific need, because of financial, health or other circumstances, would be much more likely to succeed. A well off child would find it difficult to succeed.

Challenges have to be made within six months of the grant of probate. In practice, a challenge should be instituted as soon as possible.

Because of the complexity of the area, it is essential to obtain prompt legal advice.

 

© Peter Gauld LL.B.

Peter J. R. Gauld LL.B

Gauld & Co. Elder Law Solicitors

Suite 5, 1st Floor,

838 Glenferrie Road,

Hawthorn, Melbourne, Australia, 3122.

03 9024 3868

0401 230 711

gauld.co@gmail.com

Accommodation Bonds – another myth

In the continuing series about accommodation bonds, we have myth number 2:

Myth – I will lose a large part of the accommodation bond when I leave the facility.

We are talking about (Commonwealth funded) aged care facilities.

What a facility can deduct from the accommodation bond when the resident leaves, or dies, is strictly controlled by the Aged Care Act. The facility must follow the rules set out in this legislation – the facility has no discretion whatsoever.

The only deduction that can be taken from the bond is what is called the ‘retention amount’. This is a monthly deduction of, at May 2011, $307.50*. This amount is set by the Department of Health and Ageing. The retenton amount can only be taken for a maximum of five years (even if the resident moves to another facility). Accordingly, the maximum deduction for a resident who stays at a facility (or facilities) for five years or more can only be a total amount of $18,450. If the resident leaves after one year, the amount retained will only be 12 times $307.50 – $3,690.

It doesn’t matter whether the bond is for $100,000 or $800,000, the deduction is the same.

Moreover, the retention amount cannot be altered during the period of residency.

The facility is also entitled to all of the interest earned on the bond moneys, and the interest must be applied to very specific and limited purposes, defined in the legislation, which include improving the facility.

Apart from the retention amount and the interest, the facility cannot deduct anything else from the bond.

*a lower retention amount applies to bonds of less than (approximately) $40,000.

 

© Peter Gauld LL.B.

Peter J. R. Gauld LL.B

Gauld & Co. Elder Law Solicitors

Suite 5, 1st Floor,

838 Glenferrie Road,

Hawthorn, Melbourne, Australia, 3122.

03 9024 3868

0401 230 711

gauld.co@gmail.com

Words of wisdom from oldest man

There have been many reports in the newspapers about the death of the world’s oldest man (and second oldest person).

Walter Breuning died in the United States aged 114.

He had some wonderful words of wisdom on death and longevity.

He was quoted as saying – “We’re all going to die. Some people are scared of dying. Never be afraid to die. Because you’re born to die.”, and, “Everybody says your mind is the most important thing about your body. Your mind and your body. You keep both busy, and by God you’ll be here a long time.”

He worked for 50 years on the railways and retired at 67. But he kept working; he became the manager and secretary for the Freemasons organisation the Shriners, a position he held until he was 99.

 

© Peter Gauld LL.B.

Peter J. R. Gauld LL.B

Gauld & Co. Elder Law Solicitors

Suite 5, 1st Floor,

838 Glenferrie Road,

Hawthorn, Melbourne, Australia, 3122.

03 9024 3868

0401 230 711

gauld.co@gmail.com

More financial abuse of the older person

There was an article about financial abuse of elders in the Age on 1st April.

Unfortunately, this was just one of several similar stories published in recent times.

It drew attention to this ever increasing problem.

Monash University has been conducting a study on this abuse. On the limited data available to it at present, indications are that older women were more likely to be victims than men, and the most likely perpetrators were sons, followed by daughters, then guardians, followed by other family members.

One of the common forms of abuse was the improper use of powers of attorney.

Although such abuse is often very difficult to identify because the victim is invariably elderly, trusting, vulnerable and possibly suffering from some dementia, there are some things that can be done to minimise the risk of abuse occurring.  I will mention just a couple.

Careful consideration of who is appointed attorney under power of attorney is critical. It may be appropriate to appoint two attorneys, at least one of whom is not within the category of persons mentioned who are the most likely to abuse. It may also be appropriate in the power of attorney to require that both attorneys sign, rather than one or the other.

It may also be appropriate, in an enduring power of attorney (one that survives the incapacity of the person giving the power) to make a requirement that the power only commences upon incapacity.

If abuse has already occurred, and the victim still has legal capacity, the victim may wish to change his or her Will to exclude the abuser, if a close family member who might otherwise have benefited. This is a way to “even things up” in a much more subtle way than taking some other form of more direct action that the victim may be reluctant to take.

This is a big issue which I am sure we will be encountering more and more as the population ages.

 

© Peter Gauld LL.B.

Peter J. R. Gauld LL.B

Gauld & Co. Elder Law Solicitors

Suite 5, 1st Floor,

838 Glenferrie Road,

Hawthorn, Melbourne, Australia, 3122.

03 9024 3868

0401 230 711

gauld.co@gmail.com

Care required gifting to charities

The “Include a Charity” initiative is under way. It is directed at encouraging people to make a gift to charity in their Wills.

I don’t think it is necessary to say anything more about how worthwhile such an initiative is, but it is necessary to draw attention to some legal pitfalls.

It is vitally necessary in a Will to properly identify the object of the gift. If the intended recipient is not named properly there is a real risk that the gift will fail.

It is not as easy as one might think to properly identify the particular charity. For example, leaving a gift to “the Lost Dogs Home” is vague. Which lost dogs home? In what State? For what purposes at the lost dogs home?

Solicitors practising regularly in this area would always check the correct legal identity of the proposed charity. Traditionally solicitors would purchase The Charity’s Book which listed all relevant details about most charities. However, there is now an associated website at which such details can be easily located – www.auscharity.org

Charities will also often provide the suggested wording for the gift, or a number of alternate wordings according to what particular aspect of the charity is sought to be benefited, in addition to the correct legal name and address.

If all else fails the charity should be telephoned and advice sought about correct wording. Charities are always delighted to receive these calls!

The moral of the story is that great care is required in drafting Wills, not only for charitable gifts, but also for all other “normal” gifts.

 

© Peter Gauld LL.B.

Peter J. R. Gauld LL.B

Gauld & Co. Elder Law Solicitors

Suite 5, 1st Floor,

838 Glenferrie Road,

Hawthorn, Melbourne, Australia, 3122.

03 9024 3868

0401 230 711

gauld.co@gmail.com

Let’s “advance”

A visiting American dignitary was recently interviewed on the radio and indicated that he was leaving a government position.  The announcer asked if he was going to retire.

The dignitary’s answer was that he was going to retire but he preferred the term “advance” – he said that he would be “advancing”.

What a fantastic term! It would be nice if this terminology were to become mainstream.

Another term I dislike is “retirement village”. As I have mentioned before, being retired is not a prerequisite to entering a retirement village. A person, or at least one of a couple, only has to have reached the age of 55 (in Victoria). I have always thought that it would be better to call them “community villages” or something similar.

 

© Peter Gauld LL.B.

Peter J. R. Gauld LL.B

Gauld & Co. Elder Law Solicitors

Suite 5, 1st Floor,

838 Glenferrie Road,

Hawthorn, Melbourne, Australia, 3122.

03 9024 3868

0401 230 711

gauld.co@gmail.com

Powers of Attorney – Attorney MUST keep records

Section 125D of the Instruments Act provides as follows:

“Requirement to keep records

An attorney under an enduring power of attorney must keep and preserve

accurate records and accounts of all dealings and transactions made under the

power.”

This refers to enduring powers of attorney, but there would be a common law duty in relation to all powers to keep records. Even if there were no mandatory obligation, an attorney should in practice always keep records on the basis that the attorney should always be able to justify what he or she has done should there be any challenge by a disaffected person.

The records do not have to be audited, and they do not have to be kept in any particular way, nor do they have to be overly detailed. It may be sufficient to keep an exercise book recording all transactions conducted under the power of attorney, and the date of the transaction.

The keeping of records may in fact be more honoured in the breach than the observance, but nevertheless the obligation is a mandatory one.

 

© Peter Gauld LL.B.

Peter J. R. Gauld LL.B

Gauld & Co. Elder Law Solicitors

Suite 5, 1st Floor,

838 Glenferrie Road,

Hawthorn, Melbourne, Australia, 3122.

03 9024 3868

0401 230 711

gauld.co@gmail.com

Our ageing population

Tim Colebatch recently wrote an article in the Age about our ageingpopulation and the future costs to the community of that process.The article was full of quite extraordinary (and some frightening) statistics.The statistics were grounded in the fact that the first baby boomersturn 65 this year, and, leading from this, the proportion of theretired population will increase dramatically over the next 50 years.For example, the ratio of workers to retirees in 2006 was 5.2 to 1.However, by 2056 this ratio will be 2.6 to 1.Colebatch goes on to identify many conclusions from this, based onexisting Australian Bureau of Statistics figures and futureprojections from those figures.The big future picture is of accelerating costs for health care,pensions, aged care, etc., but with an accelerating decline in theproportion of the population of working age able to pay for thesecosts.The only way to avoid the economic catastrophe that will be theinevitable consequence of these figures, Colebatch says, will be forfederal and state governments to act immediately to address suchthings as increasing the retirement age (there is no biological reasonto retire at 65) and raise the age at which superannuation can beaccessed and pensions obtained. These are election losing policieswhich are unlikely to be (and aren’t being) adopted with the urgencyrequired.As Colebatch notes, it is difficult to imagine a topic more importantgiven the stark reality of the statistics staring us in the face.

 

©Peter J. R. Gauld LL.BGauld & Co. Elder Law SolicitorsSuite 5, 1st Floor,838 Glenferrie Road,Hawthorn, Melbourne, Australia, 3122.03 9024 38680401 230 711gauld.co@gmail.com

Legal capacity to sign documents

The capacity of a person, especially an older person, to execute legal documents is an important and quite complex topic for lawyers.

If a Will, for instance, is signed by a person who does not have the requisite mental capacity, the Will becomes invalid. This will be so for any legal document, and of course could lead to significant problems sometimes years down the track.

But capacity is relative; a person may not have the appropriate capacity to execute one document, but may have the capacity to sign another document. It depends on all the circumstances and the type of document that has to be executed.

Having a diagnosis of mild dementia will not necessarily lead to the conclusion that there is no legal capacity. There was a recent Supreme Court case in which there was mild dementia, and in fact a doctor gave evidence that the person did not have the appropriate capacity to sign. However, the Court took evidence from a solicitor who drew the document (a Will in this case) and that evidence was that the solicitor spent a great deal of time with the person and went to great lengths to explain everything to her and made sure that she understood what was being said. The Court concluded that at the time of making the Will the person did have appropriate capacity, that, at the time, she did understand the nature of what she was doing. It didn’t matter that she may well have forgotten shortly afterwards everything that had transpired, but at the time she did understand.

However, the same person may not have the capacity to sign a more complex document, which might require a much higher degree of analysis and understanding.

It is not up to the lawyer to make any medical diagnosis. The lawyer may see “red flags” that might point to some incapacity, and may seek to obtain a medical opinion. But if there is doubt, the lawyer is professionally bound to follow the client’s instructions and produce the document based on those instructions. The lawyer may well advise the client that he/she may have doubts about the validity of the document once signed, and advise to undergo a medical examination to establish capacity, but the lawyer cannot force the client to do this.

As the population ages there can be little doubt that the subject of capacity will become increasingly important.

©Peter J. R. Gauld LL.B

Gauld & Co. Elder Law Solicitors

Suite 5, 1st Floor,

838 Glenferrie Road,

Hawthorn, Melbourne, Australia, 3122.

03 9024 3868

0401 230 711

gauld.co@gmail.com

Peter Gauld.

The Principal, Peter Gauld LL.B, has been a practising solicitor in Melbourne, city and suburbs, for thirty years.

He has a keen interest in the legal issues that affect the senior citizen.

He is, amongst other things, a member of the Elder Law Section of the Law Institute of Victoria and a volunteer Community Visitor for the Office of the Public Advocate.

He holds a Bachelor of Laws degree from the University of Melbourne, graduating in 1978.

He has a background in litigation.