The OHL Wire ISSUE 13: Older People in NSW and their Legal Needs

August 2015

ISSUE

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13

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OLDER PEOPLE IN NSW AND THEIR LEGAL NEEDS

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GRANDPARENTS’CUSTODY AND VISITATION RIGHTS

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IT’S SCHOOL HOLIDAY TIME! A LEGAL GUIDE ON HOW TO MANAGE YOUR HOLIDAY RENTAL PROPERTY

LEGAL - WEALTH PROTECTION - INVESTMENT - BUSINESS - LIFESTYLE - SYDNEY

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NURSING HOME NEGLIGENCE: KNOW YOUR RIGHTS

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WHAT HAPPENS TO STAFF ENTITLEMENTS WHEN A BUSINESS IS BOUGHT OR SOLD

Older People in NSW and their Legal Needs

Australians today are living longer and have better life expectancies.

While the government is progressively working toward understanding the needs of older people, efforts tend to focus mainly on health and socio-economic needs. In this article, we explain some common areas where older people often require legal assistance.

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OWEN HODGE LAWYERS

Wills, Probate and Trusts The number of people who die each year without a will or estate planning of any sort remains high. Several legal issues must be taken into account when considering estate planning • • • • •

how a will is structured; the appointment of trustees; the division of the estate; whether a trust is desirable; and the appointment of guardians for children.

These issues should not be left to “do it yourself” kits. Similarly, personally prepared documents may leave a will with several ambiguities and one may end up signing a document that is not enforceable. Many also forget that even if a will is properly

residential premises that are, or are intended to be, predominantly or exclusively occupied by retired persons who have entered into village contracts with the complex’s operator.

When introduced, the primary object of the legislation was ensuring the protection of the rights of retired persons. A most common are loan and licence agreements, leases and service agreements.

In 2013, new regulations in NSW introduced the inclusion of three compulsory documents (a Standard Retirement Village Contract, a General Enquiry Document and a Disclosure Statement). As these documents form the basis of the on-going legal relationship between the owners, operators and the tenants/residents, it is vital they be read carefully and understood fully.

changing circumstances.

Enduring Power of Attorney A Power of Attorney (POA) is a legally-binding document that allows a person (the donor) to nominate someone they trust decisions on their behalf. The POA may be time-limited, until death or until the donor no longer can make decisions. after capacity is lost. The POA Act requires both the donor and attorney to sign and accept the conditions outlined in the document to minimise any misunderstanding after capacity is lost.

Advance Care Planning

to village, prospective residents are encouraged to obtain legal advice before signing or entering into any arrangement with an operator.

Discrimination The law prohibits discrimination on the basis of age in key areas of public life. Since the enactment of the age discrimination legislation, lawyers and action groups have successfully represented older persons in age discrimination-related on rights which may be protected and where compensation clearly is deserving.

Elder Abuse

In NSW, components of an advance care plan include: • enduring guardianship, legally appointing a substitute decision-maker under the Guardianship Act in an approved format; and • an advance care directive.

Advance Care Directives (ACDs) contain a person’s instructions as to the type and extent of health care they wish to receive in the event of losing the capacity to make decisions. ACDs can be amended or revoked at any time while one still has legal capacity.

abuse, or neglect or a combination of multiple abuses.

The presence of dementia or cognitive impairment can lead transactions, which can, in turn, lead to vulnerability to abuse. misuse of the Enduring POA, withholding money, not repaying possessions without permission.

Original ACDs should be kept in a safe place where they can be found easily if the need arises. As ACDs are legally enforceable documents, a lawyer should be consulted in drafting them and assisting in their periodic review.

Physical abuse, by its very nature, can result in serious consequences for older persons. Other than bodily harm, it also includes deprivation and restrictions of the personal right to self-determination, personal freedom, access to medical treatment, provision of safe and clean living conditions and access to support networks.

Retirement Villages

Elder abuse, or suspected elder abuse, should be reported in

Older people may be restricted in their accommodation options, either due to physical incapacity, costs, need for caring arrangements or solitary living after a spouse’s death.

contact the Aged Care Information Line or contact us.

OVER 60 YEARS OF TRUSTED EXPERIENCES

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Grandparents' Custody and Visitation Rights The relationship between a grandparent and a grandchild and any rights a grandparent believes arise from it are not codified into law. Most often, this is not a problem. Many parents believe a loving relationship between grandparent and grandchild is an important part of family life.

Find out more.

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OWEN HODGE LAWYERS

While the law does not give grandparents any specific rights in relation to their grandchildren, it does state that children have a right to spend time and communicate on a regular basis with grandparents. The courts also will take into account a child's best interests. The child's rights and best interests are the principles on which grandparents can base a claim to put their familial rights on a more formal basis.

consideration will be the best interests of the child.

When deciding what the best interests of the child are, the court will consider, among other things: the benefit to the child of having a meaningful relationship with both his or her parents; the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

Parenting Order If a grandparent needs the law to recognise and enforce certain rights, such as visitation, custody or access, then he or she must go to court. Grandparents can apply to the court to seek a parenting order that allows them access to their grandchild, as set out in the requested order.

Parenting Plans If grandparents need a less formal acknowledgment of their relationship with their grandchild, then they can negotiate access through a parenting plan.

A parenting order made by the court can cover a variety of issues including determining: the person with whom a child is to live; the time a child is to spend with another person; the allocation of parental responsibility for a child; and the communication a child is to have with another person or other persons.

The two most common types of orders for which grandparents apply are: Spending time and communicating with a grandchild.

Grandparents usually apply for this type of order when the relationship between the grandparent and the parent breaks down and the parent refuses access to the grandchild.

Obtaining full parental responsibility for the grandchild.

Grandparents usually apply for this type of order when they fear for the grandchild's well-being and safety, often due to the parents’ violence or drug addiction.

Counselling Before the court makes a parenting order, all the parties to the order must attend family counselling to discuss the matter.

If the circumstances are urgent, for example, in the case of violence, then the court will waive the requirement for counselling. Similarly, if, for some reason, it is just not practical to have all the parties attend counselling, then the court can waive the requirement.

Best interests of the child When deciding to make a parenting order, the court's first

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When a relationship breaks down and a couple applies for a divorce, the court encourages the parents to come to an informal, voluntary agreement about matters concerning their children. This informal agreement is called a parenting plan and, for the purposes of the law, it should be entered into freely by both parents, in writing and signed.

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If your daughter or son is getting a divorce and developing a parenting plan then, as grandparents, you can ask to be included in the plan. The plan is useful as it ensures all parties understand their rights and obligations in relation to the welfare of the child.

Having the arrangements for a child set out in a parenting plan can be helpful in circumstances where one party continually breaches the plan. If this is the case, then you can apply for a parenting order to mirror the provisions set out in the parenting plan. Once an order is made that mirrors the provisions of the parenting plan, then the provisions are legally enforceable.

Next steps The important role grandparents play in a child's life is recognised in the law through the fact that grandparents specifically are listed as being able to apply for a parenting order from the court. Except in the case of an emergency, a parenting order should be the last resort.

A grandparent who wishes to be part of their grandchild's life should try negotiating visitation with the child's parents. However, in the case of a relationship breakdown, a grandparent may ask to be included specifically in the terms of any parenting plan to which the former couple agrees.

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It's school holiday time!

A Legal Guide on How to Manage your Holiday Rental Property

Many homeowners in NSW rent out their homes on a short-term basis to holiday makers. Preparation is the key to making sure renting out your home is a positive, profitable experience. Each property will have different issues and we recommend obtaining legal advice so you understand the issues relating to your specific property.

Find out more.

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OWEN HODGE LAWYERS

First Checks Before renting out your home, you need to check some things to ensure you legally are able to do so. You should check whether your local council allows your home to be rented out as a holiday rental. You also will need to check for any restrictions in your area. If you live in a strata property, then you will need to check the strata's bylaws and/or management statement to ensure holiday rentals are allowed.

Check the terms of any insurance policies you have to ensure holiday rental is not a breach of the policy’s terms.

You may need to take out special insurance to cover the time when your property is rented out. Communicate with your insurers to make sure they are aware of your intentions so your property is insured during the rental period.

Holiday Rental Websites On Your Own Often, homeowners use holiday rental websites (HRW) to advertise their homes. It is important to read the HRW’s terms and conditions carefully.

Often, HRW’s terms and conditions state it is not your agent and is purely a venue on which you can advertise your home. This means the HRW is not a party to the holiday rental contract between you and your tenants; even if the contract is made through the HRW. Consequently, you may not be able turn to the HRW for help with tenant disputes.

Obligations to HRWs It is also important to review carefully all the liabilities, indemnities, guarantees, etc. that you will provide when you sign up to use an HRW.

You either can manage the property yourself or employ an NSW-licensed real estate agent to do so on your behalf. Managing the property yourself, especially if you do not have any experience or knowledge in holiday rental properties, will mean a significant amount of time and effort to understand your obligations. Even if you employ an agent, it is important for you to be aware of all the rights and obligations you have as a landlord.

Finance To protect yourself and your property, you should ask your tenants to provide a deposit. Depending on your circumstances, your property may be covered by laws setting out how holiday rental deposits are handled.

You should obtain legal advice so you can understand how to manage your deposit to ensure you comply with your legal obligations.

Safety You need to make sure your property is safe before you can rent it out. At the very minimum, this means you should make sure that: * if your property has a pool, it complies with all legal requirements; * you regularly check all electrical appliances; * you regularly check the gas and electricity; and * you regularly check any other aspects of the property that could give rise to safety issues, such as fireplaces, play equipment in gardens and any sporting equipment you provide.

Inspection Reports

For example, most HRWs have strict rules about the types of photographs you can use to advertise your home. Often, you need to have “legal” consent of any people shown in the photographs. To easily show consent, you generally should have it in writing, making sure the consent at least mirrors the provisions of what the HRW can do with the photos. Some HRWs have special rules on photographs showing children.

As with many other types of rentals, you will need to inspect the property before each letting and note the property’s condition in detail. Then you and your tenant can sign a copy of the report. At the end of the letting, you will need to inspect the property again and note any damage to it. Then this damage can be paid for out of the security deposit. Note that you should not charge for normal wear and tear.

While each set of terms and conditions are different, it is important to be well aware of what you have signed up for so you can deal with the HRW in a way that minimises your risks.

Holiday Rental Code of Conduct

Managing the Property

OVER 60 YEARS OF TRUSTED EXPERIENCE

The Holiday Rental Code of Conduct is a voluntary code that sets the standard for holiday rentals. You can find more information regarding the code on the Holiday Rental Industry Association's website (www.hria.com.au/).

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Nursing Home Negligence: Know Your Rights Few situations are more distressing than the neglect or abuse of someone who is helpless. Nursing home residents are fragile, often unable to communicate and hidden away from the eyes of the world. They may also be the victims of nursing home negligence or abuse at the hands of those trusted with their care.

Prevalence and Signs of Nursing Home Negligence The statistics, frankly, are shocking. The NSW Task Force on Abuse of Older People has revealed that as many as 5 percent of those who live in nursing homes have experienced abuse or neglect. Eight percent of adults reportedly know someone who has been victimized by nursing home negligence.

Second, report it to the nursing home administrator.

Third, seek emergency medical assistance, if necessary.

Immediately thereafter, seek legal assistance on behalf of the suspected victim.

Nursing home negligence is both very disturbing and disturbingly common. The Aged Care Act 1997 and the basic principles of negligence law are there to protect the rights of vulnerable neighbors and family members. But enforcement depends on watchful friends, family and health care workers. If you suspect someone you know is the victim of nursing home negligence, act promptly, both to prevent further harm and ensure compensation is paid where due.

The mistreatment may take a variety of forms. It may be physical, emotional, sexual or financial. It can be a matter of medication errors, nursing or medical care that falls below a reasonable professional standard, careless supervision, abusive financial dealings or even the failure to plan for emergencies such as a fire or the loss of power.

Watchful friends and family should be very alert to the signs, including: Bedsores; Bruises or broken bones; Signs of dehydration or malnutrition; Poor hygiene; Soiled bedding; Complaints about treatment; and A sudden change in behavior, such as confusion, agitation, or withdrawal.

Financial abuse may be easier to prevent than detect.

Most elder financial abuse occurs at the hands of strangers, although unscrupulous family members may be involved as well.

What to Do if You Suspect Neglect or Abuse If you suspect something is not quite right, it is best not to hesitate. Your instincts are likely very good.

First, make notes about the abuse, including the victim’s name and age, a description of physical or emotional symptoms and the details of any incident you witnessed, including the date, parties involved and location.

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OWEN HODGE LAWYERS

What Happens to Staff Entitlements When a Business is

Bought or Sold

When a business changes hands, the staff may go to work for the organization’s new owner. Keeping at least some of this department’s staff on may be very important for continued business success. However, an organization’s new owner must understand that he may be assuming some obligations for staff entitlements when a business is bought and employees come with the company.

What Happens to Staff Entitlements After a Business Purchase The business transfer effectively ends an employee’s position with the old employer, regardless of whether the employee goes to work for the company’s new owner or not. This means the employer who is selling the company either has to provide notice or has to provide payment instead of notice. If the business transfer happens before the notice period ends, the old employer still is required to pay the rest of the notice period.

The purchaser of a business does not have to take on the employees who worked for the organization before it was sold. If the purchaser opts against taking on the employees, the seller of the business generally either will need to re-allocate the workers or will need to terminate them and assume all costs associated with their redundancy.

If an employee is offered a position with the new company and rejects it -- even if the terms and conditions would be the same and the employer’s service would have transferred over -- then the seller of the business does not have to pay redundancy pay.

OVER 60 YEARS OF TRUSTED EXPERIENCE

When the Purchaser Takes on the Employee If the purchaser of a business opts to take on the employees, the new owner must recognize the employees’ service with the old employer for certain entitlements including: * Requests for flexible work arrangements. * Sick leave, parental leave, and carer’s leave.

A new employer who is not an associated entity of the old employer generally does not have to recognize the employees’ service for purposes of redundancy, annual leave, long-service leave, unfair dismissals, or notice of termination. The new employer will need to let the employees know that the service with the old employer is not going to be recognized.

If the new employer opts not to recognize service with the old employer for purposes of annual leave, the company that is selling the business will need to pay out the accumulated annual leave that has not been taken.

If the transferring employee is given notice by the old employer and is taken on, and then subsequently terminated by the new employer, only the service with the new employer is used to determine the amount of notice required before termination.

Getting Legal Help Determining exactly what your obligations are for buying and selling a business is very complicated. Contact us!

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Where to Take Dad This

Father’s Day comes but once a year, and is a great opportunity to show dad how much you love him.

Here are a few great ideas for where to take your father for your family celebration this year:

Restaurants If your dad loves to eat (and what dad doesn’t), then a restaurant feast may be the perfect option for your Father’s Day celebration.

The Victoria Room in Darlinghurst is hosting a special afternoon tea for chaps with live entertainment and a menu just for dad’s day, along with a whiskey and chocolate tasting. The Red Lantern on Riley or Crown free beer for dad can be had at the lunch at Riley or the dinner at Crown. The Morrison Bar & Oyster Room on George Street in Sydney has upped the ante with an entire free meal for dad: either lunch or dinner is complimentary. These are just a few of the many restaurant deals going on throughout Sydney to help you celebrate Father’s Day.

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Father’s Day

Adventuresome Activities way, is a fun, adventurous place for dad to go that also is going to provide a great time for the whole family. There are double go-karts for kids and adults to go in together and carts that go up to 13 hp. Pennant Hills West Pymble Fire Trail is also a great choice for dads who like outdoor adventures like hiking and bike rides.

Cultural Events The Art Gallery of New South Wales is a wonderful place to take dads interested in Australian art collections and and approximately one million visitors enjoy the collections at the Gallery every year. Your father may enjoy a day at the gallery, complete with lunch at the in-gallery cafe or a picnic in nearby Domain Park. The Capital Theatre is also a famous show venue that dad may enjoy visiting.

Whatever you choose, the important thing is to spend the day together!

OWEN HODGE LAWYERS

What’s On In Sydney The Festival of Dreams 2015

The Other Art Fair

Sydney Fringe Festival

11th September till 13 September Fox Studios, Moore Park NSW 2021 www.festivalofdreams.com.au

11th September till13th September Starting from Park Street Sydney and Finishing at Bondi Beach

1st September till 30th September Various Locations, Sydney Suburbs NSW www.sydneyfringe.com

A 3 day festival of musical performances, spiritual workshops, sacred ceremonies, readings, healings and delicious food.

Special international delegates will be performing their powerful Voice of the Past, Voice of the Future talks and ceremonies over three packed nights.

The Other Art Fair is UK's largest artist-led fair, Sydney-siders will now have the chance to purchase work direct from 85 unrepresented artists.

Each artist has been carefully chosen to exhibit their work. Visit The Other Art Fair to discover the next rising star.

In over 50 venues every September, celebrating local artists and encouraging new audiences to experience the independent arts of Sydney in order to build a stronger more sustainable sector.

The Gangsters' Ball

Taiwanese Festival 2015

4th September 30 Eton Street, Sutherland NSW 2232 www.suthentcent.com.au

5th September The Metro Theatre, Sydney NSW 2000 www.gangstersball.com.au

5th September 2015 till 6th September 1-25 Harbour Street, Sydney Harbour NSW www.facebook.com/taiwanfestival

The Starliners presents a tribute to the Girls of the Golden Age of Rock, focusing on the magical 60's, from the pioneering stand out individuals to the wonderful harmonising singing groups of that era.

Australia's biggest and longest running cabaret, vaudeville, burlesque, swing dancing and fancy dress event! A fully themed night of interactive non-stop entertainment, The Gangsters' Ball will bring to life the fashion, style, humour and classic merriment of the 1930s.

The Taiwan Festival is a cultural celebration of Taiwanese lifestyle, food, culture and art, and the diverse multiculturalism of Australia. Taiwan has a remarkably rich cultural diversity, artistic energy and passion for entertainment. Taste authentic street food at the night markets and admire Taiwanese modern art.

AAADA 2015 Sydney Antiques Fair

Australia International Dive Expo

9 September till13 September Royal Randwick Racecourse www.aaada.org.au/sydneyfair

12th September till 13th September Royal Hall of Industries, Moore Park NSW www.australiadiveexpo.com

The AAADA fairs are Australia's only international quality fairs. Featuring the Exclusive Exhibition of The Mystery of Napoleon's Gift. Every object tells a story.

The Sparkling Jewellery Collection of Gwyneth Todd, a direct descendant of Napoleon Bonaparte.

Australia International Dive Expo (AIDE) 2015 is a trade and consumer show to promote SCUBA diving, dive equipment, diving agencies, dive travel agents, tourism boards, dive centres, resorts and live-abroad, marine conservation, free diving under one roof to showcase their brands and services.

The Starliners

OVER 60 YEARS OF TRUSTED EXPERIENCE

Sydney Underground Film Festival 17th September till 20th September 105 Victoria Road, Marrickville NSW

programs unique, quality independent challenge the conservative conventions renewing local interest in independent

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INDIVIDUAL AND COMMERCIAL LAW SPECIALISTS Enhancing the lives of our clients by providing acquisition of wealth, protection and management of assets and the transfer of wealth throughout generations.

CALL 1800 770 780 VIEW www.owenhodge.com.au VISIT Level 3, 171 Clarence Street, Sydney NSW 2000 Level 2, 12-14 Ormonde Parade, Hurstville nsw 2220