Having a Will means that after your death, your possessions - including money, property, jewelry or shares - are distributed according to your wishes. Without a Will, your estate will be distributed according to the laws in New South Wales, which means that people in your family may inherit from your estate even if you do not wish them to.
 
Your Will should be specific and kept up to date.
 
There is a comprehensive ‘planning ahead tools’ website that explores the issues around Wills and other legal documents that protect your interests when you are no longer able to. Click here to visit the website, administered by the NSW Trustee and Guardian and NSW Public Guardian. Translated fact sheets are also available.
 
The Legal Information Access Centre (State Library NSW) also offers a comprehensive online legal guide to wills, estates and funerals.

A General Power of Attorney means that you appoint one or more people to make financial and legal decisions on your behalf. This person is known as your attorney. The POA is a legal arrangement that operates while you have ‘capacity’ and can be useful to have in place before a minor operation or while you are overseas, in case a decision needs to be made on your behalf.
 
It would be wise to make an Enduring Power of Attorney if you are going to hospital for a major operation.
 

What does ‘capacity’ mean?

This is a legal term defining when a person is capable of making decisions, understanding the facts involved and understanding the choices and the consequences of the decisions. Someone suffering dementia, for example, will at some stage lose the capacity to make decisions for themselves.
 
A solicitor will have a face-to-face conversation with the person, asking open-ended questions, to determine if they have capacity or not. If there is any uncertainty about capacity, a report can be obtained from a legal practitioner. A person should always be presumed to have capacity unless demonstrated otherwise.

An EPOA is an ongoing appointment of one or more people to make legal and financial decisions on your behalf. It continues after you lose capacity, as long as you live. It is a powerful document and gives your attorney(s) the discretion to access to your bank accounts and assets. The attorney is under a legal obligation to act in your best interests.

You need to think carefully about who should take this role. The EPOA document needs to be registered with the Land and Property Information Office, if property is to be bought or sold by your attorney. An EPOA can be revoked (withdrawn) at any time whilst you have capacity.

You can download an Enduring Power of Attorney form here.

A guardian is a person you choose to make decisions on your behalf in areas of health, welfare and accommodation and personal services. Your guardian needs to be someone you trust.
 
Enduring Guardianship only comes into effect when you can no longer make decisions for yourself due to physical or mental incapacity. In relation to physical incapacity you may be impaired to the extent that you are no longer able to care for yourself at home, even with services in place, and would therefore be at risk.
 
In this situation your enduring guardianship would come into effect. If there is uncertainty as to whether your enduring guardianship has come into effect, the Guardianship Division of the NSW Civil and Administration Tribunal can make this decision based on the medical evidence.

An Advance Care Directive is a document that sets out the medical care you wish to receive, or not receive, in case you are no longer able to speak for yourself or make your own decisions. It is particularly important when you have a progressive, life-threatening, or terminal illness. You can specify whether you want resuscitation, life support or artificial feeding.
 
For more information, visit the Advance Care Directives section of the NSW Trustee and Guardianship website.
 
Your guardian should have a copy of your Advance Care Directive document and should make all health professionals aware of it including the doctor, hospital and aged care home. An Advance Care Directive should be drafted in consultation with your doctor, who should witness it and keep a copy.

Every time you buy something, whether it is a product or a service, you are entering into a contract. This means that you have legal rights in relation to the product or service. These rights are known as consumer rights, and are upheld by law.

The safest option is to employ only licensed tradespeople. To avoid being exploited:
 

• Be wary of tradespeople who turn up at your door asking for work.
• Ask to see the tradesman’s license and call 13 32 30 (Fair Trading) to check that the license is still valid.
• Ask for a written quote for the job. Do not rush into anything.
• Get two or three quotes from different licensed tradespeople so you can compare prices.
• Ask friends and relatives if they have used a tradesperson who did a good job and has good references.

Always keep the receipt for your new products. If a new product does not work properly, you are entitled to a refund, replacement or repair. Return the product to where you bought it, with the receipt, to get a replacement product or a full refund of the cost or a repair.
 
Under Australian Consumer law there are guarantees implied into the sale of all goods and services regardless of the terms of the written contract. These guarantees relate to the quality of the goods, that the goods are fit for the purpose described by the seller, that the goods fit the description given, and that the goods match the sample.
 
If there is an infringement of one of these guarantees you need to return the goods as soon as possible, as time limits apply. You have three years from the date you detect a defect to lodge a claim in the NSW Civil and Administrative Tribunal under the Consumer Claims Act for breach of a guarantee.

As an older person, you may own your home but not have enough cash to meet your needs. You probably can't take out an ordinary loan because you are unable to repay it. Loan products that release the equity in your home (known as ‘reverse mortgages’ or ‘home equity loans’) may be a way around these problems, because they allow you to borrow against the value of your home while you still live there.

These loan products need very careful consideration. You need to understand the consequences of the terms of the mortgage.
 
For example:
 

• The interest is added to the loan amount and can build up over time, eating into the equity of your home.
• There could also be terms called ‘default provisions’ which can allow the bank in certain circumstances to demand the immediate payment of the full loan amount plus interest. This could cause you to lose your home.
• You may be left with insufficient funds to choose to enter into a retirement village or an aged care facility, if this becomes necessary.
• Any dependents who live with you may be left without a home to live in after you have passed away.
• The bank rather than your children may be the beneficiary of your estate.

 
It is essential that you obtain independent legal advice before you decide to take up a reverse mortgage loan. There may be other options such as downsizing to a smaller home that you could consider.

The way you use the money from the reverse mortgage loan can also impact on the amount of age pension you receive. Before you sign any loan documents, take time to find out about the financial implications from one or more of the following organisations:
 

• A Financial Information Service Officer at Centrelink:
  ph: 13 23 00
• FIDO - Australian Securities and Investment Commission - financial tips and safety checks:
  ph: 1300 300 630
  www.fido.gov.au 
  About financial products - equity release

A "Granny flat" is a term given to an arrangement where you, an older person, agree to live with your child on the same property. You make a financial contribution to a property in exchange for the right to live on the property.
 
This financial contribution might involve a payment for the construction of a separate self-contained flat on the property, or payment for renovations to an existing house such as the construction of a downstairs or upstairs area in a separate part of the house.
 
The financial contribution might also be a payment towards the purchase of a house on the understanding you will have the right to live there for the rest of your life with your children. There may also be an agreement that your child will provide you with physical care and support for the rest of your life.
 
Problems can arise with these arrangements if you have not considered what would happen if your circumstances change or if there is a dispute as to what you and your family have agreed. There are some things you can do to ensure that if things do not work out your legal interest in the property is protected.
 

Five tips

• Get a formal agreement in writing
• Get independent legal advice
• Hope for the best but plan for the worst
• Find out if a change of arrangements will affect your pension
• Get legal advice as soon as things go wrong.

Fair Trading NSW has a comprehensive publication ‘Consumer information for older Australians’ that details your rights as a consumer in all areas of your life, from your home to your health.

Seniors Rights Service can inform you of your rights, act on your behalf, or assist you to act for yourself. Contact Seniors Rights Service on 1800 424 079.
 
Please note - this is general information only, it is not legal advice. If you feel you need legal advice please phone Seniors Rights Service and ask to speak to one of our solicitors.

If an organisation holds personal information about you, it must allow you to access the information if you request it. The exception, in relation to health information, is if access would pose a serious threat to the life or health of any person. There are other limited exceptions (see National Privacy Principals #6).

The organisation cannot charge a fee for lodging an application for access. However they can charge a fee for reasonable administrative costs such as photocopying and postage expenses.
If you request your records from an organisation and they refuse you the right to access or correct your records, you can complain to the Australian Information Commissioner (1300 363 992) under section 36(1) of the Privacy Act 1988 (Cth).

The National Privacy Principles under the Privacy Act 1988 (Cth) apply to: individual practitioners working for corporate practices, corporations, incorporated partnerships and commonwealth public institutions / service providers and corporate aged-care facilities. The National Privacy Principles and the Act do not apply to state public institutions (hospitals), small businesses that do not provide health services, or sole practitioners or unincorporated partnerships.

What are health records?

Health records are:

• Personal information or opinion about the physical or mental health or disability of a person, or
• The person's wishes about the future provision of health services, or the health services that have been, or are to be provided.

As a patient you have a right to obtain a copy of, or inspect, your health records. You need to request access in writing, including your name, address and sufficient information to identify the health information. Your request must specify whether you want a copy or you want to inspect the records.

Within 45 days of your request you must be allowed to have a copy of the records or to inspect the records and make handwritten notes. Where access is refused, written reasons must be given for the refusal within 45 days of the date of your request. There are limited grounds for refusing access.

If no response is received or the request is refused by the practitioner or private hospital, a complaint may be made to the Office of the Privacy Commissioner NSW (02) 8019 1600.

A guardian appointed under an enduring guardianship appointment has the same rights to access personal information as the individual who made the guardianship appointment.
Applications for access to public hospital documents are to be made under the freedom of information legislation, Government Information (Public Access) Act 2009 (NSW).

Applications for access to health records to private hospitals and private practitioners are made under the Health Records and Information Privacy Act 2002 (NSW).

A retirement village is a residential complex, occupied mainly by retired people aged 55 years and over. Accommodation ranges from freestanding cottages to villas and blocks of units. Most villages offer car parking in an attached garage or designated parking spot close to the villa or unit.
 
For more information see the Seniors Rights Service fact sheet Comparison of Retirement Villages and Aged Care Homes.

Self-care villas or units are designed for residents who require no assistance with daily living activities. Generally, the villas or units are self-contained, with their own laundry. Recently constructed villages have wheelchair access, with internal halls and doorways designed to accommodate residents using disability aids.
 
Serviced apartments are designed for residents who require assistance with their daily living activities. Depending on the needs of the individual, assistance can be provided in preparing meals, laundry and cleaning. Meals are served in a communal dining room, but some villages will provide meals to the resident's apartment. Residents usually have access to personal and or nursing care, generally on a fee-for-service basis. Residents have the right to bring in outside services to assist with such care.

Retirement villages do not provide aged care.
 
Villages offer a range of services that are funded by the residents including gardening, repairs and maintenance of units. Any personal assistance or care must be arranged and paid for separately. If you live in a village, you can make use of in-home aged care services if you qualify for this.
 
Retirement villages are regulated under the NSW Retirement Villages Act 1999 to provide residential accommodation for people who are able to care for themselves.

Find out:
 

• Is the retirement village near local shops, transport, doctors, churches, etc?
• Will the village lifestyle, including social and religious activities, suit me?
• Are the village grounds secure, pleasant and well tended? Is there adequate external lighting and paths for easy access?
• What alternatives do I have if I become too frail to live alone? For example, does the village have services such as nursing care and an emergency call system?

You need to know the rules for occupants of the village. For example, can I make changes to the inside of my premises, have someone visit or live with me, keep a pet, do my own gardening, etc.
 
Ask for the village’s General Enquiry Document and make sure you have adequate information about the village. It is important to show all the documentation to an independent solicitor so your legal rights and obligations are clear to you. If you are interested in a unit, ask for the Disclosure Statement for that unit.

It is very important that you talk to a solicitor before you sign anything. Talk to your family solicitor, or ask for Seniors Rights Service’s referral list of solicitors with expertise in retirement village law. You may have overlooked something important, for example:
 

• Am I choosing to move to a retirement village because the general maintenance of my house has become too difficult for me?
• Have I considered other options, eg. home help, self-contained or serviced apartments for older people?
• Have I looked at other villages to compare the homes, services and financial arrangements?
• Will I be eligible for rental assistance from the Commonwealth Government?
• Do I fully understand the contract I am about to sign?

 
Call Seniors Rights Service if you need telephone advice on 1800 424 079.

• What services will I need? Are they offered and how much do they cost?
• Does the village have adequate services and accommodation for my present needs and will it continue to do so as I get older or if I get sick, become disabled, need a wheelchair, walking aid or bath rail?
• Can I pay the recurrent charges / levies comfortably on my present income?
• What will my financial position be, if my spouse or partner dies?
• If the recurrent charges / levies rise, would my future income be sufficient to meet the payments?
• What do I do if the village manager refuses to carry out repairs to my unit?
• What do I do if the village management withdraws services or facilities at the village?
• How do I make a complaint?
• Do I have to join the residents’ committee?
• When I leave the village, how and when do I get my money back?

The operator of a retirement village may apply to the Consumer, Trader and Tenancy Tribunal for an order terminating your residence contract if it believes that you cannot live there independently because of a physical or mental incapacity. But the Tribunal can only make such an order if it has considered a medical report by a doctor nominated by you and you must be given reasonable opportunity to supply such a report.
 
The operator can also terminate your contract on other very limited grounds. Please call Seniors Rights Service and ask to speak to one of our solicitors if you want to discuss this, or have any concerns.
 
Contact Seniors Rights Service on 1800 424 079.

Seniors Rights Service runs the Retirement Village Legal Service. Please call and ask to speak to one of our solicitors if you have any concerns. We can explain your rights, refer you to other solicitors, or assist you to act for yourself.
 
Contact Seniors Rights Service on 1800 424 079.
 
Please note – this is general information only. It is not legal advice. If you feel you need legal advice, please speak to a Seniors Rights Service solicitor. Seniors Rights Service solicitors can advise you on your legal options in relation to a complaint.