Elder Law
Sometimes the legal question begins with concern about someone you care about
Legal issues affecting an older person do not always arrive neatly labelled.
A family may become concerned about whether someone can continue making important decisions for themselves. An attorney may be unsure about the decisions they are permitted to make. There may be disagreement within a family about who should be making decisions or what is in an older person's interests.
Sometimes the concern is about money, property or whether another person may be taking advantage of someone who has become vulnerable.
At Watt & Severin, we help individuals and families understand the legal issues, the decision-making arrangements already in place and the options available when circumstances change.
How can we help?
Capacity & Decision-Making
Understanding the legal issues when someone's ability to make decisions is in question.
Attorneys & Enduring Powers of Attorney
Advice about the authority, responsibilities and conduct of an attorney.
Family Concerns & Disputes
Advice when family members disagree about decisions, care, finances or who should act.
Financial Abuse & Vulnerability
Advice where there are concerns about the financial affairs or exploitation of an older person.
Capacity & Decision-Making
Capacity is about the particular decision
Age does not, by itself, determine whether someone can make their own decisions.
Questions about decision-making capacity can arise because of illness, injury or changes in a person's circumstances, but the legal issue requires more careful consideration than simply asking whether someone is capable or incapable.
Different decisions can involve different considerations.
Where capacity becomes an issue, it may be necessary to consider the particular decision that needs to be made, the person's circumstances, any existing legal arrangements and whether appropriate medical or other evidence is required.
We can help identify the legal issues and explain the options available.
Planning before capacity becomes an issue
Where a person has capacity to make their own arrangements, appropriate forward planning can reduce uncertainty later.
That may include making or reviewing an Enduring Power of Attorney and ensuring broader estate planning remains appropriate.
Attorneys & Enduring Powers of Attorney
Being appointed as an attorney carries responsibility
An Enduring Power of Attorney can give another person significant authority to make decisions on someone's behalf.
The nature and extent of that authority depends upon the document, the type of decision involved and the applicable law.
An attorney must exercise their powers consistently with their legal duties.
Questions can arise about:
when an attorney's authority begins;
what decisions the attorney can make;
how multiple attorneys are required to act;
dealing with the principal's money or property;
conflicts between the attorney's interests and those of the principal;
keeping appropriate records;
gifts or financial transactions involving family members;
selling or dealing with property; and
whether a proposed decision falls within the attorney's authority.
We can advise attorneys who are trying to understand and properly perform their role.
We can also advise a person who has concerns about the way an attorney is exercising their powers.
Unsure about an attorney's authority or responsibilities?
Family Concerns & Disputes
When people agree that help is needed but disagree about what that help should look like
Families do not always agree about decisions affecting an older person.
There may be disagreement about finances, property, living arrangements, care, the actions of an attorney or who should be responsible for making particular decisions.
Sometimes the disagreement arises because family members have different views about what is best.
In other circumstances, there may be a more fundamental concern about whether someone is acting appropriately.
The existence of a family disagreement does not automatically determine the legal position.
We start by understanding what has happened, what legal arrangements are already in place, what decisions need to be made and whose rights and interests are affected.
We can then explain the available options and, where appropriate, help explore a practical way forward.
Financial Abuse & Vulnerability
Financial concerns should be taken seriously
Financial abuse can take different forms and may not always be immediately obvious.
Concerns can arise where another person appears to be exercising inappropriate control over an older person's money or property, obtaining a financial benefit, placing pressure on them or misusing a position of trust or authority.
The circumstances may involve an attorney, family member, carer or another person with access to the older person's finances or assets.
Sometimes a transaction that concerns other family members was genuinely intended by the older person. In other cases, questions may arise about capacity, pressure, authority or the conduct of the person involved.
It is important not to assume the answer before the circumstances have been properly examined.
We can review the relevant documents and transactions, help identify the legal issues and advise about the options available to protect the person's interests or address concerns about what has occurred.
Concerned about someone's financial affairs? Talk to us about what has been happening.
Financial Abuse & Vulnerability
Financial concerns should be taken seriously
Financial abuse can take different forms and may not always be immediately obvious.
Concerns can arise where another person appears to be exercising inappropriate control over an older person's money or property, obtaining a financial benefit, placing pressure on them or misusing a position of trust or authority.
The circumstances may involve an attorney, family member, carer or another person with access to the older person's finances or assets.
Sometimes a transaction that concerns other family members was genuinely intended by the older person. In other cases, questions may arise about capacity, pressure, authority or the conduct of the person involved.
It is important not to assume the answer before the circumstances have been properly examined.
We can review the relevant documents and transactions, help identify the legal issues and advise about the options available to protect the person's interests or address concerns about what has occurred.
Concerned about someone's financial affairs? Talk to us about what has been happening.
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When there is no effective decision-maker
Sometimes a person is no longer able to make a particular decision and there is no Enduring Power of Attorney in place that adequately addresses the situation.
In other circumstances, an existing appointment may no longer provide a workable solution because of disagreement, inability to act or concerns about the appointed decision-maker.
Queensland law provides mechanisms for decisions to be made and, where necessary, for appropriate substitute decision-making arrangements to be considered.
Depending upon the circumstances, this may involve an application to the Queensland Civil and Administrative Tribunal (QCAT).
We can advise about the existing arrangements, whether an application may be necessary and the steps available to address the particular issue.
Elder law often connects several areas of law
An issue affecting an older person may involve more than one legal document or practice area.
A question about capacity may affect an Enduring Power of Attorney.
An attorney may need to sell the person's home or deal with a retirement village or manufactured home.
Estate planning may need to be reviewed while the person is still able to make decisions.
Following death, an executor may then need to deal with those arrangements as part of the estate.
We look at those connections rather than treating each legal issue in isolation.
You do not need to know what the legal problem is before you call us
Often the most useful starting point is simply to tell us what has been happening.
Who is involved?
What has changed?
What decisions need to be made?
What are you concerned about?
What documents or arrangements are already in place?
From there, we can identify the legal issues, explain what matters and help you understand the options available.
Talk to Watt & Severin about an elder law concern.