As we grow older, keeping our independence is something that tends to weigh heavily on our mind. We value being able to go about our daily lives without feeling that we are a burden on family members and friends.
When your independence is compromised through, say, the loss of your driving licence, it can make life less enjoyable. However, there is no reason why you can’t remain in control of your life, for example, with social outings and maintaining your own health and wellbeing. When it comes to legal matters, this includes planning your estates, appointing enduring powers of attorney and taking comprehensive advice on what is loosely called ‘elder law.’
What is elder law?
Elder law covers things such as estate planning, retirement village contracts, rest homes and residential care facilities, along with applications under the Protection of Personal and Property Rights Act 1988 (PPPR Act). Elder law also involves relationship property issues and the legal remedies available for elder abuse victims.
Estate planning is at the heart of elder law, ensuring that your legal affairs are in order and reflect your wishes. When updating your will, you should ensure that enduring powers of attorney under the PPPR Act are in place. Enduring powers of attorney enable you to appoint someone you trust to act on your behalf in the event that you are unable to manage your own affairs in later life.
Retirement villages
Purchasing an apartment, unit or house in a retirement village is not like purchasing your own home. You don’t buy a title but instead enter into an occupation right agreement (licence), which gives you the right of exclusive occupation, generally for the rest of your life. The Retirement Villages Act 2003 sets out the rights and obligations of both residents and village operators and the licence records your rights and obligations.
There are a number of factors to consider if you are moving to a retirement village. You need to consider things such as location, size of the village and proximity to family and friends.
Rest homes and residential care facilities
Moving into a rest home or residential care facility can be expensive and many people need financial assistance to pay for the cost of care. Government assistance is provided by WINZ and the Ministry of Health, with applications processed through WINZ at Whangarei.
Subsidies and loans are means tested and if you have a family trust you need to have completed your gifting programme five years prior to lodging your application. This will ensure that your gifting is not treated as personal assets.
The assets threshold is currently $227,125.00 for a single person or a couple who are both in care.
Mental incapacity
What happens if you become mentally incapacitated through illness or injury and you do not have enduring powers of attorney? When the capacity to handle your own affairs is in question, applications can be made by your family to the Family Court under the PPPR Act. Applications that can be made under the PPPR Act include the appointment of a property manager and the appointment of a welfare guardian.
On receiving an application under the PPPR Act, the Family Court will appoint a lawyer for the person who has become mentally incapacitated to ensure that the applicant is suitable and has the person’s best interests at heart.
However, it’s preferable to have enduring powers of attorney in place to ensure that your family does not need to go through this process with the Family Court, as it can be stressful, expensive and time-consuming. If you have enduring powers of attorney, you will also have peace of mind knowing that control over your finances and healthcare will be given to someone who you trust.
If you’d like to speak with us about elder law, either for yourself or a family member, please get in touch with our team.
This article is brief and general in nature. You should not treat this article as legal advice and should seek professional advice before taking any action in relation to the matters dealt with in this article. Armstrong Murray accepts no liability for losses suffered by any person or organisation who may rely directly or indirectly on this article.
