Elder Law

Elder Law Assignment

ASSIGNMENT QUESTION – REFLECTION (1500 words)

Elder Law Reflection Assignment

Factual scenario

Mr D is 87 years old. He has a diagnosis of Alzheimer’s disease, the most common condition that causes dementia symptoms. He has a report from his doctor that says he scores 18/30 on the Mini Mental State Exam. He owns a modest home in Sydney where he lived until a recent move to an aged care facility. His wife died ten years ago. Around 18 months ago, Mr D’s son was made redundant from his job and moved back to the family home to live with his father. The son has not been able to find regular employment and works casual hours. Mr D’s daughter lives in Adelaide, where she is employed fulltime. She has regular phone contact with her father and travels to Sydney to visit him several times per year.

Mr D appointed his daughter as enduring power of attorney (EPOA) after his wife passed away. He also has a Will that divides his assets equally between his two children. A few months ago, the son arranged for Mr D to change the EPOA to add the son.

Mr D has recently moved to an aged care facility in Sydney. He had several falls on stairs in his home. He is underweight and has nutritional deficiencies as he lost interest in cooking and eating in the past months. His son eats out and did not prepare meals for his father.

You are a lawyer and you work with a community legal service organisation that visits aged care facilities to provide assistance to residents with preparing advance planning documents. You meet Mr D and his son. The son tells you Mr D wants to transfer the family home into the son’s name. The son says he will borrow 2/3 of the value of the home to pay the father, then pay down the rest over a 10-year period.

You visit Mr D again the following week. The son is not present and the daughter rings from Adelaide while you are meeting Mr D. She asks to speak with you and tells you her brother is financially exploiting their father. She also thinks her father’s memory is getting worse and he has difficulty following conversations when she rings him. She said the nursing manager at the care facility contacted her recently to ask if Mr D had previously appointed an enduring guardian or made an advance care directive. Mr D said he wasn’t sure when the manager asked him these questions. The manager said the facility would like to support Mr D and his children in advance care planning. He has recently complained of fatigue, pain and shortness of breath. He is going to have further medical investigations and the family should be prepared for news that his life expectancy may only be another 12-24 months.

Instructions

The Workshop case scenario about Mr D asked you the following questions:

1. What are the legal issues you identify in this scenario?
2. What capacity questions arise in relation to these legal issues?
3. What are strategies you could use to accommodate Mr D’s cognitive and other impairments?
4. What information do you need to determine next steps in this situation?

In your reflection, address the four questions above using this writing guidance. For example, what issues and questions did you initially identify and what strategies did you think you could use in assisting Mr D? How did discussion with your peers change or enhance your thinking? What insights did you learn from the external guests? How could you apply this learning in addressing the challenges involved in Mr D’s situation?

Your reflective learning process should be informed by various sources: Elder Law readings you have been assigned to date; in-class discussion with your peers; perspectives shared by the external guests; and, of course, your considered thinking and analysis. Your reflection should be research-informed and you may draw on sources in addition to the subject readings. The main focus, however, should be on demonstrating your process of reflection.

Main points discussed in class:

-appointed his daughter and son as EPOA; what was the nature of her appointment, when was it supposed to be given effect

– double EPOA – son and the daughter

– son’s appointment – son wanting to transfer the house

– assume assets are the house

– did he have the capacity to appoint his son/daughter

– health issues > advanced care director etc…

– possible revision of will

– transfer of houses etc…

Undue influence isues – EPOA (Property) (home) – any limitations contained in the enduring power of attorney documents

• Decision by decision analysis

MR D to provide documents, solicitor provides documents > Mr D can contact or you can

• If he is taking medication how does it influence his capacity?
• Enduring power of attorney at least and maybe guardianship
• Explain in simple legal terms (part of strategies)

I have also attached a few useful articles which were looked at to help in writing this reflection.

Marking Criteria:

Please use AGLC3 in text FOOTNOTES REFERENCING if you need to reference.

No bibliography required.