Elder Law: Drafting Effective Financial and Medical Powers of Attorney – Recorded Online Conference

Dealing with the demands of commercial practice can make it difficult to find time to attend professional development events. We realise that not everyone can spare two days out of the office. So we’re offering you a new way to access the experts online – a half-day online conference, focused on key essentials for getting the deal done.

You can put your staff in the boardroom and watch it there. You can watch it on your computer or on your portable electronic device. All for the same low price.

The conference will be based on our highly successful video webinar technology: there’ll be a chairperson, a panel of experts, presentations and discussion.

Session 1: Capacity in the Elderly and Lawyers’ Professional Conduct Obligations

Capacity to do what is the first question, because capacity issues arise every time you are acting for a client with some form of cognitive impairment. It’s not just about the will - the question arises every time you receive instructions. It arises when your client is said to have lost capacity. Capacity also raises issues of professional conduct: should you act on the instructions or not? Get it wrong and you might find yourself in hot water with the regulator. This presentation will cover:

• Capacity and willmaking
  • the Banks and Goodfellow test - has the law developed at all?
  • the duty to make the will - where it stands today
• Making an enduring power of attorney
  • what is the test of capacity for an EPOA?
  • do you have a duty to make the power if possible?
• Taking instructions on other matters - determining the test
• Practical guidance in assessing capacity
  • checklists and guidelines - does box ticking help - and do you have a choice?
  • meeting the client - in the absence of relatives
  • tell-tale signs of capacity loss
• Capacity is a legal test - what is the role of the medical profession in assessing capacity?
  • when should you have the client seek a medical opinion?
  • what questions should you ask the doctor and how?
• Capacity and professional misconduct
  • what the professional conduct rules tell us
  • likely sanctions for breach
  • case law on the issue
  • practical steps to stay out of trouble

Session 2: Tips and Traps in Drafting Enduring Financial Powers of Attorney to Reduce Elder Abuse Risk

One in two people over 85 will be afflicted with some form of dementia. That means that the enduring power of attorney is not only part of the estate planner’s armoury but an essential element of the estate plan - without it, you are not doing your job. As the problems with elder abuse multiply, the nature of the instructions you should be seeking and the protections you should be inserting are expanding. This presentation will focus specifically on the scope of the powers, including:

• Advising on the choices of attorney under power:
  • spouse, including spouse in a blended family
  • children - if more than one, what
  • professional advisers as attorneys under power
  • should the attorneys act jointly or jointly and severally?
• Provisions operating if the attorney losing capacity
• From when should the power take effect?
• Power - general
  • making and changing BDBNs
  • seeking orders under the Family Law Act
  • making family provision applications
  • acting as a director in place of the donor
  • acting as an appointor or guardian in the place of the donor
• Conflict transactions
  • the concept explained
  • sale of house/agreement re RAD
  • transactions benefiting grandchildren
  • making trust distributions
• Powers and limitations
  • do you need/can you authorise conflict transactions? If so what?
  • what restrictions on powers are appropriate?

Session 3: Advance Care Directives and End of Life Care Management - Elder Law and Dying

Advanced care directives are sometimes referred to as a ‘living will.’ If properly drafted, it should contain directions for medical treatment that need to be considered before medical treatment decisions are made for you. This session looks at the key issues, including:

• Advanced care planning - essential planning checklist
• What do advance care directives contain - directions on medical decisions
• Separating the advanced care directive from the enduring guardianship appointment
• Does the advanced care directive have to take a particular form?
• When does the advance care directive apply?
• Assessing who will make decisions for you if you cannot
• The difference between an advance care directive and an advance care plan
• End of life care management - legal and ethical parameters
• Spotlight on Victoria’s assisted dying legislation
• Case study - which jurisdictions have binding forms and which do not