Aged care providers, retirement villages, geriatricians, social workers and home care coordinators see the last chapter of a family’s story up close. You see who visits and who does not. You notice when a resident suddenly signs new documents, or when a child takes over the bank cards. And in Chinese families you may face a resident who speaks little English, children who disagree about care, and relatives overseas who arrive with strong views.
Situations you will recognise
- Conflicting instructions from children, each claiming to speak for the parent.
- An attorney who may be overstepping: selling the home, moving money or refusing visitors, while other family members raise concerns.
- A resident who wants a new will or wants to change their attorney, when their capacity is uncertain.
- Fees and the family home. Decisions about paying accommodation costs, selling or keeping the home, and who decides.
- Language and culture. Families that expect decisions to be made collectively, or by the eldest son, while the law focuses on the individual resident’s own wishes.
How we can help
- For families: enduring powers of attorney and medical treatment decision makers, made while capacity is clear. We give advice to attorneys on their duties, and to family members concerned about an attorney.
- Elder mediation: a structured, neutral conversation between family members about care, money and accommodation, in English or Mandarin. Justin Chua is a nationally accredited mediator who has trained in elder mediation.
- Capacity-sensitive will-making: seeing the resident alone, with an independent interpreter, and with medical evidence where needed.
- Disputes: applications to VCAT or the Supreme Court where an attorney or guardian needs to be reviewed or replaced.
Why work with us
We understand that your duty is to the resident, and that you cannot take sides in a family dispute. A neutral lawyer and mediator who speaks the family’s language can take that pressure off your staff and keep the focus on the resident’s wishes and wellbeing.
Frequently asked questions
What is elder mediation?
Elder mediation is a structured, neutral conversation between family members about an older person’s care, money and accommodation. A mediator helps the family work through issues such as conflicting instructions, an attorney’s decisions and the family home, while keeping the older person’s own wishes at the centre. It can be conducted in English or Mandarin.
What can families do if an attorney may be overstepping?
Family members concerned about an attorney who may be overstepping, for example by selling the home, moving money or refusing visitors, can take advice on the attorney’s duties and raise their concerns. Where needed, an application can be made to VCAT or the Supreme Court for the attorney or guardian to be reviewed or replaced.
Can a person with uncertain capacity make a new will?
Only if they have testamentary capacity when the will is made. Where capacity is uncertain, careful practice includes seeing the person alone, using an independent interpreter and obtaining medical evidence where needed. If the person has lost capacity altogether, the family may need to consider an application to the Supreme Court for a statutory will.
Who makes decisions for an aged care resident who has lost capacity?
Generally the attorney appointed under an enduring power of attorney for financial matters, and the medical treatment decision maker for medical decisions, ideally appointed while the resident’s capacity was clear. Children do not automatically have authority, and the law focuses on the resident’s own wishes rather than the family’s collective view.
Chua Tan Associates advises families, executors, trustees and their professional advisers on estate planning, estate administration and estate disputes, in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English and Mandarin.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal advice. Victorian law unless stated otherwise.
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