As the population continues to age it is almost inevitable that all of us will need assisted living at some stage of our lives. This likelihood is more probable if we suffer from an illness or disease which is incurable.

The best thing to do in response to this problem is to be prepared as much as you can, while you can. There are legal issues that should be addressed as well as financial, accommodation and care issues. Fortunately professional advisors and care providers are becoming better equipped to advise and respond to these needs.

First, it is important from a legal perspective to have your estate planning in place while you are well and capable. The time may arrive when you are no longer capable of making these types of decisions. In other words there is a point in time when the law recognises that people can lose their capacity to make legal decisions and after that time you are very much restricted in making any impact on who will be handling your affairs.

Making sure your Will is current is very important. A Will is the most important document you will ever sign because it is the only document you sign where you give away everything that you own.

An Enduring Power of Attorney is vital to making sure that your property and financial matters will be handled by those you trust in the event you are no longer able to do so. For example, you can delegate that authority to deal with organisations like banks, Centrelink or DVA, share registries, superannuation funds, aged care facilities etc, by having an Enduring Power of Attorney.

Enduring Guardianship delegates authority for decisions such as your care and accommodation, ongoing care needs, medical consent, withholding medical consent and end of life decisions.

It is hard to imagine while you are well that you will ever need to have these appointments in place but there are countless example of where families and other interested people end up at the Guardianship Tribunal making applications for financial management and guardianship. The tribunal heard about 7000 applications last year from people who were otherwise unprepared.

Finally you can also make an advanced care directive in which you can stipulate what types of medical treatment you consent to and what you do not consent to. This directive should be made known to your appointed guardian who can give instructions to medical providers at the appropriate time.

Second, if you are in need of assisted living or care there is a process of assessment which initiates the care given.

Assessment is carried out by what is called an Aged Care Assessment Team and known as “ACAT”. Once a person is assessed by ACAT there is a determination made about the level of care required.  That care can vary from a home assistance package which provides domestic and nursing assistance, to low and high level care in an aged care facility.

Low level care generally equates to living in a facility with communal dining and other services and where the resident has their own room with basic kitchen and bathroom facilities. High level care means a high level of nursing assistance and assistance with feeding, washing and other services.

The assessment of care has a significant financial consequence. Generally, people who are living in low level facilities are required to pay an accommodation bond. On top of the bond are monthly fees which are determined by the government. On leaving the facility most of the bond paid is returned to you or your estate.

In high level care generally no bond is payable but there are additional care fees which are again assessed by the government. The general principle being that what you pay is determined by what you own and what you earn. We would generally advise that people seek competent financial advice before entry to an aged care facility so that you make an informed decision about how future care is funded.

The future for aged care is at present in a state of transition. The federal government is considering a number of options, which essentially involve funding issues. It would be fair to say that in future there will be a further shift away from government subsidies to a user-pays basis for aged care funding. This means while it is important now to get competent advice before embarking on aged care, in the future it will be even more critical if your goal is to preserve what you have worked for during your life.

In summary, be prepared. Get good advice before signing or committing anything to paper. Be in a position to make an informed decision and to have those people that you trust involved in your decision making if need be in the future.

James Kelly of Owen Hodge Lawyers is experienced in the matters and can assist you with advice and a network of experts.

Administration of an Estate – Grant of Probate or Letters of Administration
Assets and Liabilities of an Estate/a>
Contracts Involving Wills
Executors’ Obligations
General & Enduring Guardianship
General & Enduring Power of Attorney
Intestacy Rule
Legal Capacity and Wills
Living Wills and Mutual Wills
Not-For-Profit Organisations: Wills & Bequests
Retirement Village & Aged Care Advice
Retirement Village Accommodation
Revoking a Will
Special Disability Trusts – What Are they and How Can they Assist uou
Succession Planning
Testamentary Trusts
vBlog – Estate Law
Ways to change your Will
Advanced Care Directives
Dementia and the Law
Does A Person Have Capacity To Make A Will?
Enduring Guardianship

How to begin dealing with a Deceased Estates
FAQ about Probate & Executor Duties
Family Provision Act Claims and Estates Disputes
FAQ about Planning For Your Future
Farm Succession Planning
FAQ about Wills & Estate Planning
Guardianship Tribunal Appeals
General & Enduring Guardianship
General & Enduring Power of Attorney
Granny Flats
How To Write A Will
Notary Public
Power of Attorney
Reviewing Your Trust Deed
Retirement Village & Aged Care Advice
Self Managed Super Funds and Estate Law
Superannuation Complaints Tribunal
Special Disability Trusts
Special Disability Trusts – extension to CGT relief
Substitute decision-making
The Succession Act
Transition to Aged Care
Wills & Estate Planning

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