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Exactly what is elder law?

Don’t worry, you’re certainly not alone if you’re not sure what ‘elder law’ means and how it relates to your situation.

Are you over 55 years old, or do you have a parent or relative who is over 55?

Elder law is especially relevant as you consider issues such as:

  • downsizing from the family home into new accommodation
  • making decisions about financial affairs, now and into the future
  • elder abuse (when an older person suffers harm or distress caused by someone known to them).

A lawyer who practises elder law is focused on any legal issue affecting someone over 55 years old.

We are Newcastle lawyers and we have a specialist Elder Law team.

Why would I see an elder care attorney?

There are lots of important decisions to weigh up as you grow older, including those affecting your home, finances and welfare.

Elder law is especially relevant if:

  • you are about to retire or considering retirement
  • you are thinking about downsizing or moving into a manufactured home, retirement village or aged care facility (beware complex contracts! You can read more about this below)
  • you want to plan for decisions relating to your future financial affairs, medical care and living arrangements if you’re affected by an accident, illness or condition such as dementia
  • you or someone you care about has been mistreated in an aged care facility or another setting and you need advice from an elder abuse attorney
  • you or someone you care about has experienced financial abuse, possibly by someone in a position of trust.

Why do legal services for the elderly require specialist lawyers?

Any lawyer can practice elder law if they wish to. However, it’s important to realise that elder law is a specialised field that requires a unique understanding of the legal issues facing older Australians.

As you grow older, if you get the wrong advice it can dramatically affect your life.

For example, you might be surprised by the complexity of legal contracts as you consider downsizing from the family home into new accommodation such as a retirement village, aged care facility or manufactured home.

In fact, those contracts often include rules and regulations that are governed by different pieces of state and federal legislation.

This can be a real pitfall for an unsuspecting person who doesn’t get the right legal and financial advice, and ends up paying unexpected ongoing costs or exit fees.

And do you know the importance of demonstrating capacity as you or an older family member makes decisions about their financial affairs and personal well-being?

Please note you can read more about capacity below.

Avoiding stress and worry in later life

“Some of these legal issues as you grow older can be very complex,” says Catherine Henry.

Catherine is a Newcastle lawyer who specialises in elder law and medical negligence, and has more than 30 years experience.

“I think elder law might conjure up images of wills and estates but there’s an enormous amount of legal territory to cover,” she says.

That’s why it’s so important to engage with someone who has specialist expertise in elder law.

“A specialist elder lawyer does much more than helping to set up your will and power of attorney,” says Catherine.

Sure, it’s not the most high profile legal speciality but we believe providing dedicated legal services for the elderly is incredibly important work.

“We’re passionate about helping our clients grow older without having to feel stressed or worried” — Elder care attorney Catherine Henry

No-one wants to be worrying about the necessities of life such as where to live and being cared for appropriately in older age.

Not to mention the awful situation where an older person is taken advantage of, by someone unscrupulous.

Our Elder Law team led by Catherine Henry has a wealth of experience and we’re proud to provide a dedicated service to the over 55 age group.

Prevention is better than cure

When it comes to making big decisions as you grow older, this old saying has a lot of truth.

It’s so important to seek independent legal and financial advice before you sign off on any important life decisions.

Especially if you’re feeling pressure from another person or family member, or you’re not sure you’re being properly listened to.

As specialised elder care attorneys, we make it our priority to listen to you.

And we’ll often work in conjunction with your financial planner or accountant.

It’s our job to protect your interests — and explain things in plain English so you understand all of the nitty gritty legal ramifications of your decisions.

Get advice before you sign on the dotted line

While some of us find it easy to pack up and move into new accommodation when the time is right, plenty of older people find it terribly hard to contemplate leaving the family home.

There’s often a lot of emotion involved.

You certainly shouldn’t feel alone if you’re struggling to come to terms with the prospect of change.

We think it’s a perfectly natural reaction as you grapple with those big decisions.

Part of our job as specialist elder lawyers is to make sure you’re armed with all the legal information you need to make informed choices.

We don’t want you, or your family down the track, to be exposed to any hidden surprises that were wrapped up in the fine print of a legal contract.

Manufactured homes, retirement villages and aged care facilities are all popular options and they’re cropping up all over Newcastle, Lake Macquarie, Port Stephens and the Greater Hunter region.

For many older people, these types of over 55 housing are a fabulous solution.

Just be careful not to sign a contract — or pay a deposit — until you’ve been over it with your lawyer.

A lawyer who specialises in elder care will be able to explain any clauses or conditions that are not written in plain English (which is often the case) and might affect you later on.

Some of these contracts are subject to different pieces of state and federal legislation, making them tricky to understand unless you have the right professional expertise.

The last thing you want to worry about is ongoing costs or exit fees that you didn’t realise were part of the deal when you signed on the dotted line.

For more information on accommodation options including manufactured homes, retirement villages and aged care facilities click here.

Are you worried about someone living in an aged care facility?

Helping families deal with suspected elder abuse is an important part of our work as specialist elder care attorneys.

Some of the cases we’ve worked on, and seen in the media, are simply heartbreaking.

Elder abuse can be financial abuse or inadequate care — or both.

So, what can you do if you’re worried about an older person who might be the victim of elder abuse in an aged care setting?

According to elder abuse attorney Catherine Henry, the first thing you need to do is raise your concerns with the decision makers at the facility.

“Of course, you hope that will be effective — but you have to be prepared for the fact it may not be welcome.

“My view is that legal options are probably the most effective sanction if there has been inadequate or neglectful care.

“And of course, the aged person isn’t going to be the one who picks up the phone, it’s usually the adult children,” says Catherine.

As of 2019, there is a new complaints process via the Aged Care Quality and Safety Commission however Catherine warns its decisions generally aren’t published.

“Unless there are multiple adverse decisions involving a particular facility, families are none the wiser,” she says.

You can read more about elder abuse and tips to avoid it by clicking here.

We’re proud that our legal firm was the first in Australia to use a pioneering Elder Abuse Toolkit developed by the University of Newcastle and University of Technology Sydney.

You can find out more about the toolkit by clicking here.

Do you understand what ‘capacity’ means? This is why it’s super important.

Capacity is a legal word that describes your ability to make considered, independent decisions about matters affecting your life.

It means you can understand and weigh up all of the factors involved in a particular decision.

In order to have capacity, legally speaking, you must also be able to articulate or communicate your decisions.

Capacity is so important when it comes to making decisions about your money, assets and where you live as you grow older.

In order to sign a legal contract, your lawyer and financial planner or accountant will first ensure you have capacity.

This ensures you are making the decision independently, rather than being railroaded by someone else.

Sometimes an older person may have capacity to make smaller decisions about daily activities such as what to buy at the supermarket. However, a condition like dementia might compromise their ability to make bigger decisions involving money or legal contracts, for example with a retirement village.

That’s why it’s super important to prepare for this on your own terms by appointing an enduring guardian early in the piece.

Unfortunately, many of us will experience cognitive issues at some stage during our older years.

And according to Catherine Henry, only a small proportion of people plan for this scenario.

“It’s a really awful situation for a family, an older person and a lawyer if they haven’t planned properly for that situation where someone loses capacity and hasn’t got an enduring guardian,” she says.

“Our natural inclination is to put off that decision making. To live in the present and not prepare for the future because ‘it’s not going to happen to me’.

“How many times do you hear people say ‘I’m going to be carted out of here in a box’?

“But we just don’t know, do we? It’s a bit of a lottery. You can’t really predict how things are going to pan out in your 70s and 80s and beyond. Sometimes in your 60s,” says Catherine.

“It makes sense to prepare for those scenarios on your terms.”

Many people don’t realise that an enduring guardian is a different role to your power of attorney.

You can read more about enduring guardianship by clicking here.

How to contact us for more information

If you’d like more information, you can call us on 1800 874 949 to discuss your situation — in complete confidence of course.

Our team of elder care attorneys acts for clients from across the Newcastle and Hunter region, and all over New South Wales.

We’re based in NSW’s second-largest city Newcastle, which is accessible by road and public transport.

You can read more about elder law here on our website

We have plenty of free resources, including blogs and case studies that are updated regularly by our team of specialist lawyers.

You might also like to follow us on Facebook.

Our Elder Law Team


Catherine Henry

Catherine Henry

Principal | BA LLB MHL (Masters in Health Law)
Lucy Wilk

Lucy Wilk

Senior Associate | BA LLB (Hon)
Monique Smiles

Monique Smiles

Senior Associate | LLB Grad Dip Leg Prac
Liza Stewart

Liza Stewart

Solicitor I BA LLB Grad Dip Leg Prac
Marlene Fleming

Marlene Fleming

Probate and Conveyancing Clerk
Lorraine Case

Lorraine Case

Probate and Conveyancing Clerk
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