Most people realise the need for a Will to order their affairs. It is equally important to make arrangements for your affairs to be managed if by accident, illness or the ageing process, you become incapable of doing so.
In the absence of proper arrangements those left to deal with the administration of the personal affairs of an incapacitated relative, family member or friend face a distressing task often more difficult than dealing with the affairs of someone who dies without a Will.
Time to talk
It is important that you speak with your family and/or significant other people in your life about what will happen if you, or an older person in your family, needs care and assistance. This may not be an easy talk to initiate; it is hard to discuss the possibility of your own declining health or that of someone you are close to. But it is important for family to think about what might happen and consider the best way to handle change before it is forced upon them.
If you are concerned that you, or someone in your care, will become unable to manage property and finances, it is advisable to appoint a trusted person to protect your or their personal and property rights. We can assist you in making Enduring Powers of Attorney which appoint trusted persons to act on your behalf. Those people who are not able to make Enduring Powers of Attorney because of existing incapacity can have orders made under the Protection of Personal and Property Rights Act 1988 on application to the Family Court appointing a welfare guardian and/or a property manager.
Of course, making an Enduring Power of Attorney while you are still competent gives you the choice and removes the hassle and expense of family or friends having to make relatively expensive applications to the Family Court when mental capacity is lost.
Please see our articles Enduring Powers of Attorney and Advance Directives.
A third of all elderly people in the community live alone with some outside help from their family and friends. For everyone, the biggest issue is often safety of the elder person and peace of mind for family and friends.
As an older person becomes increasingly frail, accommodation and day-to-day management of affairs is an important matter to discuss together. There may need to be a change in living arrangements or in the level of assistance required to maintain independence. Options include support networks, social workers, aged care agencies, local hospital and private home care agencies, caregivers, rest homes, retirement villages, pensioner flats, long term residential and private hospitals. We are experienced in dealing with these issues, and can help you find the option which will work best for you.
There are a number of subsidies available, however many are income and/or asset tested. If you own a house and/or have funds invested or in the Bank you may be disqualified from receiving a subsidy. We have assisted numerous clients and their families in successfully working through residential care subsidy claims and other related matters
As New Zealand’s population ages and an increasing number of people become more vulnerable as a result of their age, it is important that each older person is protected. Most older people wish to assist their families and avoid conflict.
As lawyers, it is our obligation to ensure protection for each older client and each transaction or document that he or she enters into, for example when he or she:
- establishes a Will
- establishes Enduring Powers of Attorney
- sells his or her house
- buys a licence in a retirement village
- arranges a mortgage or guarantees a mortgage to raise funds for a child’s business venture or to assist a child buy a house
We encourage adult children to take an active interest in their older parents’ affairs, as outlined above. However, if the parent is our client, our duty is to the parent alone – not the child as well. Often, what is in the parent’s best interests and what is in the adult child’s best interest are different. When the parent and child’s interests do conflict, we will more than likely request to discuss the matter with the parent without the child’s presence.
One of our fundamental duties as lawyers is to avoid conflict of interest, particularly in light of older persons’ heightened vulnerability. If the parent is to arrange a mortgage or is to guarantee a mortgage to raise funds for a child’s business venture or to assist a child to buy a house, the parent and child’s financial interests are directly opposed. In such a transaction, if we have acted for the child in the past or are acting for the child on an unrelated matter at the same time, we will request, and strongly urge, the parent to obtain independent legal advice. If we are requested to act for both the parent and child in such a matter, we may insist that the parent or child obtain independent legal advice.
Reverse annuity mortgages
We have experience advising older clients on reverse annuity mortgages, also called “equity release mortgages” or “lifetime loans”.
To discuss any of these issues further, please contact Tony Fortune, Bill Duncan, Katherine McCarthy or Lauren Corbett .