“We offer you the knowledge of an experienced lawyer when considering your Retirement Village options”
Elder Law & Retirement Planning
At Attwood Marshal we care about your future. We can assist you in planning your retirement generally and when you are considering moving into retirement of aged care facilities. We are also experienced in Estate Planning and Asset Protection.
Elder Law and Retirement Village Leases and Service Contracts
There are several ways for people to own or occupy premises in a retirement village or aged care facility. You can enter a Retirement Village either under long-term lease, under license or by way of strata title ownership. Under a long-term lease, the occupier is entitled to live in the property for a period of time pursuant to the lease (most commonly 99 years). The Retirement Village owner maintains ownership of the property but the lease is registered in the occupier’s name providing security of tenure. Beyond the lease agreement, a ‘service agreement’ sets out the terms and conditions regarding the services provided. A substantial ingoing contribution fee is required under this set up in addition to ongoing recurrent charges each week.
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Testamentary Will Trust
What is a testamentary trust will? A trust exists when a person or entity (the trustee) holds property for the benefit of another person or person/s (the beneficiary/beneficiaries). A testamentary trust is a trust created in a person’s will and does not come into effect until after the death of the person making the will. There are a multitude of different types of testamentary trusts including life interests, rights of occupation and special needs trusts.
The two most common forms of testamentary trusts are trusts for minors and discretionary testamentary trusts. Trusts for minors are probably the most common form of testamentary trust; however discretionary testamentary trusts have become increasingly popular in estate planning. We have discussed discretionary testamentary trusts in more detail below
Granny Flat Agreements
For social security purposes, a parent can transfer or sell their home under the granny flat provisions and pay money to their children for a lifetime right or the use of the “granny flat” (the ‘granny flat interest’). Normally the transferred property or funds would be deemed to be a gift and would affect the pension entitlements of the parent.
However, the ‘granny flat’ rules allow for any property transferred or money paid to the parent’s children to be exempt from the usual deeming legislation by Centrelink. The requirements are quite flexible and you do not actually have to build a separate granny flat or a separate residence. As long as there is a designated room or area that allows for the parent’s exclusive occupancy and there is an agreement to support the arrangement, Centrelink will usually approve the arrangement.
Wills are a topic that none of us like to consider, but having a legal, properly prepared will is vitally important to ensure your wishes are carried out on your death. Without a will, your estate could be distributed unfairly according to a formula set by each State and Territory’s intestacy laws. This could result in some of your relatives receiving more than you wished, while other loved ones are not provided for in the way you intended.
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What is an Enduring Power of Attorney?
Power of attorney is the legal power to make financial decisions on someone else’s behalf. ‘Enduring’ simply means that the power continues even if the person giving it loses the capacity to make decisions. An attorney under an enduring power of attorney cannot make decisions about your lifestyle or health; these decisions can only be made by a guardian (whether an enduring guardian appointed by you or a guardian appointed by the NSW Civil and Administrative Tribunal or the Supreme Court).