News & Interest

Homeshare program – Wesley Mission Victoria

Wesley Mission Homeshare is a program designed to allow older people (and people with a disability), to live at home for as long as possible.

In exchange for free accommodation a person will live in the home of the older person and provide various support services. This support will differ according to the particular circumstances, but would typically involve things like shopping, gardening, cooking and other help around the house.

With this support the older person is assisted to live an independent and dignified life.

Wesley Mission checks people who wish to be “Homesharers”, and match them to the older person, the “Homeowner”. A detailed application form has to be completed. Wesley Mission draws up a legal agreement which defines the relationship, and they coordinate ongoing support and contact.

There is much more information on Wesley’s website – www.wesley.org.au (and put in Homeshare in the search box).

This sort of arrangement will obviously be very good for some, and not so suitable for others. Certainly the motivation behind the program, to allow the older person to live independently, is very much in keeping with modern approaches to aged care.

Aged Care Placement Agencies

This firm strongly recommends the use of aged care placement agencies.

What are they?

They are firms which specialise in placing people into appropriate aged care facilities.

They have a detailed knowledge of aged care facilities in their area, and often beyond their local area, and a detailed knowledge of what form of aged care they offer. Some facilities, for example, offer specialised dementia care.

There are also often issues of cultural requirements, whether low or high care is offered, whether extra services are offered, and, importantly, whether a bond is required to be paid. There are also a range of other issues that have to be taken into account, often with little time available to make decisions.

They can also do all the paperwork involved, and negotiate the payment of the bond. It is not often appreciated that (when they are payable) accommodation bonds are always negotiable. Placement agencies are in a unique position to know what a particular facility will accept as a bond, and can invariably negotiate a lower bond than would be possible otherwise.

Placement agencies also very often have links with specialist financial advisers. Proper (specialist) financial advice is critically important especially where there is a house and/or pension involved.

Placement agencies charge a fee for their services, but this is usually money well spent not only in terms of peace of mind but also because the fee could well be recouped with the advice received and very possibly the payment of a much reduced accommodation bond.

This firm has a relationship with the placement agency called Tender Living Care in Kew and can highly recommend them – www.tenderlivingcare.com.au

 

©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 – not frightening

Accommodation bonds are not as frightening as they might appear at first sight.

They are sometimes payable, but by no means always, when entering Commonwealth funded aged care homes (that is, homes under the regulation of the Aged Care Act).

All residents of Commonwealth funded homes are classified as either high or low care. Low care residents only (with some exceptions) may be eligible to pay an accommodation bond.

In the majority of cases there is no regulation as to the amount of the bond – it is a negotiated amount.

Once negotiated it is fixed and cannot be varied during the period of the residency.

Accommodation bonds are guaranteed both by the home itself, and by the Commonwealth government. Accordingly, the repayment of the balance of the bond after deduction of a monthly retention amount (also fixed by the Commonwealth, and only payable for a maximum of five years) is assured. The balance is repayable to the resident when the residency ceases. The home is entitled to all of the interest earned while the bond is held.

The bond can be paid either as a lump sum, by periodic payments, or a combination of both.

The home must use the interest earned on bonds for specific purposes mandated by the Aged Care Act, for example, improvements to facilities.

Because accommodation bonds are negotiated between the home and the prospective resident, this firm strongly recommends the use of aged care placement agencies as the first port of call. Local placement agencies have significant knowledge about what the home will seek for the accommodation bond, and to what extent it can be negotiated down.

©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

Electronic health records

The Department Of Health and Ageing has just conducted a conference in Melbourne on electronic health.

One of the focuses of the conference was electronic health records.

This subject will undoubtedly dominate the health landscape over the next few years.

Put simply, it involves the gathering of an individual’s health records from whatever source they originated, and putting them into, or making them available to, a centralised electronic system. A medical practitioner would then be able to access this information from anywhere (with your consent).

So, if you travel to Queensland for a holiday, your doctor there, a doctor you may be seeing for the first time, will have (electronic) access to all of your medical records. This will presumably include details of the appointment you had with your local doctor last week, with details of the prescription you may have been given but have forgotten to take with you.

No doubt such a system will take significant advantage of the National Broadband Network.

The Department is pouring half $1 billion into this project, and hopes to have at least part of the system up and running by mid-2012 (this might be a bit optimistic for what must be a very complex enterprise).

This promises to revolutionise health care in Australia, and we will be watching it with great interest.

Vision Australia’s audio library service

Vision Australia has a free (audio) library service available for people with a print or perception disability.

 

The service is conducted from its headquarters in Kooyong, Melbourne.

 

It is necessary to complete a membership form, which can be obtained from its website (visionaustralia.org). The membership form, amongst other things, seeks information about the type of reading material the person likes, including books, newspapers, and magazines.

 

All of the materials are posted (Australia Post participates in this scheme, and the postage, both ways, is also free) in the form of audio CDs. An audio book, for example, will always be entirely contained within one CD. It will be in the “DAISY” format, which is a special format for the print handicapped. It has certain characteristics including that it will always open where it was closed, even if you listen to another CD in the meantime.

 

The library will send out the audio CDs based on the profiling information that has been provided by the member. For example, the member might have specified that they do not like science fiction books, but like crime books and biographies. However, if the member is able to navigate the library’s website they can select titles of their choice. This could of course be undertaken by a friend or carer.

 

The library also supplies the CD player (again free!). This will play the DAISY formatted CDs, but will also play all other audio CDs.

 

Go to Vision Australia’s website for further information about this very worthwhile service.

Reverse mortgages – what are they?

The name “reverse mortgage” doesn’t really describe very well what sort of mortgage this is.The word mortgage itself is just a descriptive word for a loan. A mortgage is nothing more than a (secured) loan.

A reverse loan is very much like a normal loan, but with the significant difference that there is no requirement that the loan be repaid in the usual manner. Usually the loan is only repayable when the borrower’s house is sold, or the borrower dies.

In this way, the borrower can get access to funds where he or she doesn’t have an income that would enable the borrower to repay the loan in the normal way. In other words, it gives access to funds where funds would not otherwise be available.

However, there remains the obligation to pay interest, and this interest is added to the loan. Accordingly, the loan increases from year to year. After the first year interest is added to the loan, but after the second and subsequent years you are not only paying interest on the original loan, but on the loan plus the accumulating interest. This is called compounding interest.

For this reason one has to look very carefully before embarking upon a reverse mortgage transaction.

There are a variety of issues surrounding reverse mortgages, including that they can disinherit children if significant equity is eroded away from the property that is mortgaged. Many lenders require that the borrower seeks both financial and legal advice before proceeding.

The average reverse mortgage loan in Australia is in the region of $60,000.

Computer scam aimed at elderly

There was an article in today’s Green Guide about another computer scam.

 

The article specifically mentioned that an elderly resident of a retirement village received a call from one of these scammers.

 

The scam involves receiving a telephone call from a person who claims to be from Microsoft or Windows technical support and seems completely genuine, and being asked to allow access to the person’s computer. The computer is then deliberately damaged and the scammer seeks payment to repair it.

 

We are warned time and time again that legitimate institutions NEVER telephone their clients and customers and seek passwords, or pin numbers or access to computers in this fashion.

 

Elderly people can be particularly vulnerable in these situations, because they don’t understand and because they are usually trusting. If you do receive one of these calls, or a similar call, you should be firm and tell the person to leave their telephone number and you or your representative will get back to them in due course.

Digital dilemma

I am sure that I will be writing more about this in the future, but for the present I will just briefly mention the idea of an “online Will”.
This is something of a misdescription; what the term refers to is the several online facilities that have sprung up over the last year or so which deal with the problem of how to access digital assets/accounts when you die.
The problem itself is completely obvious – how does your executor access what may be a very great number of online services so as to simply advise of your death, or to access an account to retrieve an asset?
How does your executor even know what online presence you have?
It is impractical to incorporate all of this information into a Will. Changes are made too often, and it is too expensive and inconvenient to be constantly changing your Will. However, you could make reference in your Will to a resource which contains all of this information; and your solicitor could be made aware, and given the capacity/authority, to access this information.
One site that provides this facility is the Legacy Locker – www.legacylocker.com.
The site allows a user to record all online assets, passwords, etc.. And allows the user to continuously update this information as and when required. It also sets up protocols whereby a trusted family member (executor) or a lawyer can access the information upon the death or incapacity of that person.
It is worth having a look at this site to get an idea of one way in which this problem is being addressed.
Whether this is the way of the future is yet to be seen. Nevertheless, the problem is a real one and there is little doubt that we will see more attempts to address the problem as the digital age progresses. Watch this space!

Will formalities

We are often asked whether a misspelling in a Will, or an incorrect address of a beneficiary, or similar, might invalidate a Will, or a gift in a Will.  The answer is that they do not.
There are only a relatively few things that can invalidate a Will.  Most significantly these include not having the signing by the Will maker witnessed properly, and the Will maker him or herself not having the appropriate legal capacity to make the Will (for instance as a result of dementia).
A misspelling of the name will not invalidate a gift, as long as it is clear who the Will maker intended to benefit.  For example, a gift to “my nephew Graham Jones” will be valid if the nephew’s name is actually Graeme Jones (as long as there is not another nephew with this name!).
If there were nephews with each of these names, then the gift would probably fail for uncertainty, but this would not invalidate the whole Will, just this gift.

Reform of Powers of Attorney law

The Victorian Parliament Law Reform Committee has just completed its inquiry into powers of attorney.

Its report has been a long awaited document by lawyers, law makers and the public.  It is a very large document – 321 pages – and makes no less than 90 recommendations.  This points to the complexity of the issues involved in regulating “substitute decision making”.

The current state of the law on powers of attorney is a mess.  There are four types of powers – the General Power of Attorney, the Enduring Power of Attorney (Financial), the Enduring Power of Attorney (Guardianship) and the Enduring Power of Attorney (Medical Treatment).  They are presently governed by three different acts of parliament, and each has a different method of execution.  There is some overlap in the powers given by the various Acts. (Medical powers of attorney were not within the Committee’s terms of reference.)

The governing legislation is State based, so there is also confusion about the validity of powers drawn in different States.

Moreover, there is no system of registration; this can lead to confusion and the drawing of duplicate powers to multiple attorneys.

Perhaps most significant of all, there is confusion in those given power of attorney about what their role is, and the limits and extent of the powers granted.

The Committee addressed all of these issues, and more.

Amongst its recommendations were that a single Act (the proposed Powers of Attorney Act) govern the creation of powers, that all be executed in a consistent way, that they all have a consistent look and format, and that a system of registration be created.

The fundamental basis of the reforms is to provide for a simpler and easier to understand framework, to minimise abuse, and to promote the use of powers so that the best interests of the person giving the power are maintained.

It is hoped that the Victorian government will adopt the recommendations to the fullest extent possible as these reforms are long overdue in a society with an increasingly ageing population vulnerable to financial abuse.

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.