Professional Documents
Culture Documents
where we live; who has access to us; and what services or medical or dental
treatment we receive.
When we become vulnerable, dependent upon others to protect our inter-
ests, there is ample scope for there to be a conflict between: (a) the duty
another person has to act in our interests and (b) that person’s own interests.
A vulnerable person is also, generally, liable to be exploited by others who
may, unconscionably, take advantage of his or her vulnerability. Within rec-
ognised limits, the law (largely through an application of equitable princi-
ples or statutory analogues of those principles) endeavours –often with but
mixed success, sadly –to protect the weak, those in need of protection.
Because a person appointed to act as an attorney or financial manager, or as
a guardian of one sort or another, must act in the interests of his or her prin-
cipal (the vulnerable person), and not otherwise, his or her office is said to
be a “fiduciary” one. The duty of a “fiduciary” to act in the interests of his or
her principal, and not otherwise, is a “fiduciary” duty.
A breach of fiduciary duty can give rise to a range of remedies, including a
liability to account for property misapplied by the fiduciary. By its provision
of such remedies, the law seeks both to maintain standards of conduct and
to provide redress when standards are not observed.
At a high level of generality, the law can be stated in summary terms.
However, the devil is always in the detail and, in a real life setting, complex-
ity abounds.
In this book Richard McCullagh provides, as he says, a national “street direc-
tory” to help lawyers and lay people find a way through complexity. Much
of what is written applies to “vulnerable people” of all ages and descriptions.
However, the focus of the book is on problems (and potential solutions) com-
monly encountered by a person approaching retirement or already there.
“Elder law” is not a term readily defined, or able to be defined exhaustively,
but this is its constituency.
The book focuses on three broad issues of central concern for retirees and
those who advise retirees. First, what are the pros and cons of commonly
encountered accommodation options? Secondly, what are commonly encoun-
tered means for assisted, or substitute, decision-making? Thirdly, what are
commonly encountered grounds for securing a legal remedy, or for defend-
ing a claim, in a case of financial “elder abuse”? These issues are approached
with an understanding of questions commonly asked by lay people and the
need, in answering them, to have regard to both legal and financial criteria,
including social security implications.
Australian Elder Law makes a worthy, practical contribution towards identi-
fication, and solution, of problems which have profound implications for an
increasing number of Australians. Richard McCullagh is to be commended
for his work. It brings Australian law closer to the community it serves.
16 April 2018
Preface
This book is in large part due to, and in spite of, the College of Law, Sydney.
Shortly after the publication of Retirement Villages Law in NSW in 2013, the
College was seeking an adjunct lecturer in Elder Law and the topic of my
book must have seemed close enough. I believe my colleague Sarah Huscroft,
then studying the Masters of Applied Laws (Wills and Estates) program at
the College, and hearing of the need for such a lecturer, put my name for-
ward. I spoke with the head of the course, Jen McMillan, and took to the role
like a duck to water. When asked to re-write the course for a national audi-
ence I did so with gusto but was told repeatedly that, for the purposes of the
course, my notes were too long and too detailed.
So, this work is the unabridged culmination of teaching and practicing in
elder law for the last five years. The Central Coast of NSW, where I have
lived and worked in law for over 30 years, boasts twice the national average
of those aged 65 years and over and the highest proportion of those 85 years
and older.
I wish to acknowledge the seminal work in this area, Elder Law in Australia
by Rodney Lewis, now in its second edition. His work is most impressive in
breadth and this volume is something of a companion by focusing on just
three areas in some detail.
My thanks to my practice colleagues Sarah Huscroft and Tanya Chapman,
and all students of the course, for their insightful discussions about “real
life problems” they have encountered in elder law. Fifteen of the best text-
books cannot adequately arm a solicitor to deal with every client’s problem
because they are as infinitely varied as life is. From that chaos are facts and
factors that may, or may not, engage the law set out in this book and others.
Discerning that engagement, and the best of the options available, is what
the legal practitioner can and should do for their client.
I wish to thank my late father who encouraged an enquiring and contem-
plative attitude and often said that you owe a debt to your profession. When
studying you have the great privilege of accessing and using a huge body
of knowledge that has been tried and tested over centuries. The rule of law,
procedural fairness, the separation of powers with legislators subject to
periodic elections and judicial officers not so, are civic treasures that should
never be taken for granted, even if occasionally exasperating or profoundly
disappointing. Far from perfect, they are nonetheless social institutions that
have more built-in, but evolving, processes to expose, minimise and correct
human error than most amidst the difficult confluence of justice, order and
truth. Another such institution, science, need confine itself only to the latter
and largely in respect of matter.
x Preface
The School of Law at Macquarie University in the early 1980s had an unwrit-
ten but firm policy that one should never sally forth with a legal opinion
without judicial or statutory sources –preferably both –to support it. This
book is, I hope, faithful to that approach.
I wish to thank Patrick McHugh for the invitation to join his legal practice
and find myself immersed in the suburban crucible of this book. There is
nothing like gritty reality with which to road test lofty, yet necessary, juris-
prudential ideals.
Finally, and above all, I thank my wife Christine without whose love, support,
initial proofreading and (again) tolerance of the intense monastic seclusion
I seem to need to do these things, this book would not have been possible.
Richard McCullagh
1 May 2018
Table of Contents
Foreword................................................................................................................. vii
Preface...................................................................................................................... ix
Table of Cases......................................................................................................... xiii
Table of Statutes.................................................................................................. xxvii
Bibliography.......................................................................................................... lxiii
Part 1: Introduction
Chapter 1: Australian Elder Law: Accommodation, Agency
and Remedies................................................................................................. 3
Part 2: Accommodation
Chapter 2: Introduction to Accommodation..................................................... 13
Chapter 3: Income Support Payments for Elders............................................. 19
Chapter 4: Why don’t I Stay in My Own Home?............................................. 53
Chapter 5: Should I Downsize to a Smaller Home?......................................... 65
Chapter 6: Should I Move into a Retirement Village?..................................... 75
Chapter 7: Manufactured Homes..................................................................... 109
Chapter 8: Granny Flats..................................................................................... 129
Chapter 9: Residential Aged Care..................................................................... 163
Part 4: Remedies
Chapter 17: How can Financial Wrongs to Me be Righted?......................... 337
Chapter 18: Contractual Duties......................................................................... 353
Chapter 19: Fiduciary Duties............................................................................. 365
Chapter 20: Unconscionable Conduct.............................................................. 397
Chapter 21: Undue Influence............................................................................ 419
Chapter 22: Resulting Trusts.............................................................................. 435
xii Table of Contents
Part 5: Matrices
Chapter 26: Elder Law Matrices........................................................................ 523
Index...................................................................................................................... 545
Table of Cases
Ability One Financial Management Pty Ltd v JB [2014] NSWSC 245.........12.30, 12.190
Aboody v Ryan [2012] NSWCA 395.......................................................2.80, 11.880, 20.70,
20.130, 20.150, 20.190, 20.320, 20.410
AHB v NSW Trustee and Guardian [2016] NSWCATAD 208...................................9.750
AHB v NSW Trustee and Guardian [2016] NSWCATAP 258..................................12.430
AHB v NSW Trustee and Guardian [2017] NSWCATAP 79....................................12.430
Ainsworth v Burden [2005] NSWCA 174...................................................................21.300
ALC, SDC and ALP [2011] NSWGT 25/08/2011.......................................................11.450
Alcazar-Stevens v Stevens [2017] ACTCA 12................................................ 11.680, 11.850
Allen & Anderson & Byng v Tricare (Hastings) Ltd [2017] NSWCATCD 72..........7.190
Allen v Snyder [1977] 2 NSWLR 685...........................................................................24.220
Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495....................................................22.180
Anderson v Anderson [2013] QSC 8.....................................21.20, 21.110, 21.120, 21.260,
21.300, 31.370
Anderson v Anderson [2016] NSWSC 1204....... 5.240, 8.890, 11.470, 11.700, 19.510, 260
Anderson v Anderson [2017] NSWCA 131...................................................11.470, 19.510
Anderson v Edwards [2009] NSWCA 7........................................................................6.190
Anderson v McPherson (No 2) [2012] WASC 19.................. 8.760, 22.40, 22.130, 22.150,
22.160, 22.190, 22.360
Anguis v Salier; Anguis v Anguis [2017] NSWSC 198..............................................10.180
Anson v Anson [2004] NSWSC 766.............................................................................24.230
Applied in Blackett v Barnett [2017] NSWSC 1032...................................................23.430
Aras v Schmutz Matter Ca 40481/96 [1997] NSWSC 626..............19.760, 23.350, 23.360
Arinson Pty Ltd v City of Canada Bay Council [2015] NSWCA 199..........................1.70
AS [2018] WASAT 1........................................................................................................12.430
Ash v Ash [2016] VSC 577................................................................................19.160, 19.290
Australian Capital Territory v JT [2009] ACTSC 105................................................15.340
AWR [2014] NSWCATGD 42...............................................................................12.60, 12.80
P v NSW Trustee and Guardian [2015] NSWSC 579....... 12.30, 12.80, 12.150, 12.170, 12.220
P v R [2003] NSWSC 819...............................................................................................12.150
Pakis v Pakis [2011] NSWSC 1073...............................................................................11.950
Pearson v Pearson [1961] VR 693...................................................................................22.20
Pennie v Pennie [2010] NSWSC 565............................................................................24.420
Penshurst Street Holdings Pty Ltd v Robert Barker and Joan Barker
[2014] NSWCATCD 209......................................................................................... 6.340
Permanent Mortgagees Pty Ltd v Fadale Pty Ltd [2011] NSWSC 975.....................6.270
Perochinsky v Kirschner [2013] NSWSC 400................................................11.660, 19.270
Perpetual Trustee Co Ltd v Koshaba [2006] NSWCA 41..........................................20.400
Perpetual Trustee Company Limited (ACN 000 001 007) v Smith [2010]
FCAFC 91...................................................................................................... 4.340, 4.360
Perpetual Trustee Company Ltd v Gavin Bruce Gibson
[2013] NSWSC 276.......................................................................11.620, 19.130, 19.590
Peterson v Hottes [2012] QCA 292....................................................................24.60, 24.320
Petronijevic v Milojkovic [2014] NSWSC 1337.................................18.140, 18.230, 23.540
PGB [2014] NSWCATGD 32............................................................................11.850, 19.450
Pilmer v Duke Group Ltd (In Liq) [2001] HCA 31.........................................10.140, 19.30
Pinter v Pinter [2016] QSV 314.....................................................................................21.480
Pirina v Pirina Holdings Pty Ltd [2015] NSWSC 1899.............................................23.420
Placer Developments Ltd v Commonwealth [1969] HCA 29....................................18.70
Powell v Powell (1900) 1 Ch 243..................................................................................11.880
Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (in liq)
(receivers and managers appointed) [2017] NSWCA 8..................................... 8.100
Power v Power [2011] NSWSC 288..............................................................................11.500
PP [2016] WASAT 133....................................................................................................13.250
Priestley v Priestley [2016] NSWSC 1096............................23.130, 23.260, 23.300, 23.410
Priestley v Priestley [2017] NSWCA 155.............................23.110, 23.130, 23.140, 23.180,
23.300, 23.390, 23.410
The Public Trustee v Kukula (1990) 14 Fam LR 97.........................................24.20, 24.510
Pupo v Pupo [2015] NSWSC 1633...............................................................................25.260
PV v NSW Trustee and Guardian [2016] NSWCATAD 259.....................................13.340
Saad v Doumeny Holdings Pty Limited [2005] NSWSC 893........... 11.70, 19.110, 19.500
SAB v SEM &Ors [2013] NSWSC 253...............................................................12.130, 14.90
The Salvation Army (South Australia Property Trust) v Graham Rundle
[2008] NSWCA 347................................................................................................ 19.250
Sandi v O’Driscoll [2014] VSCA 88..............................................................................18.120
Scheps v Cobb [2005] NSWSC 455.......................................................18.80, 18.110, 25.150
Schmutz v Aras [1996] NSWSC 340.............................................................................19.770
Scott v Scott [2012] NSWSC 1541.......................................................11.150, 12.190, 17.380
Secretary, Department of Family & Community Services v Draper
[2003] FCA 1409................................................................................... 3.50, 3.320, 3.340
Secretary, Department of Social Security v Carapeta [2013] FCA 1369......................3.30
Table of Cases xxiii
"SECTION 4.
That the duties and taxes collected in Porto Rico in pursuance
of this Act, less the cost of collecting the same, and the
gross amount of all collections of duties and taxes in the
United States upon articles of merchandise coming from Porto
Rico, shall not be covered into the general fund of the
Treasury, but shall be held as a separate fund, and shall be
placed at the disposal of the President to be used for the
government and benefit of Porto Rico until the government of
Porto Rico herein provided for shall have been organized, when
all moneys theretofore collected under the provisions hereof,
then unexpended, shall be transferred to the local treasury of
Porto Rico, and the Secretary of the Treasury shall designate
the several ports and sub-ports of entry in Porto Rico, and
shall make such rules and regulations and appoint such agents
as may be necessary to collect the duties and taxes authorized
to be levied, collected, and paid in Porto Rico by the
provisions of this Act, and he shall fix the compensation and
provide for the payment thereof of all such officers, agents,
and assistants as he may find it necessary to employ to carry
out the provisions hereof: Provided, however, That as soon as
a civil government for Porto Rico shall have been organized in
accordance with the provisions of this Act and notice thereof
shall have been given to the President he shall make
proclamation thereof, and thereafter all collections of duties
and taxes in Porto Rico under the provisions of this Act shall
be paid into the treasury of Porto Rico, to be expended as
required by law for the government and benefit thereof instead
of being paid into the Treasury of the United States."
"SECTION 6.
That the capital of Porto Rico shall be at the city of San
Juan and the seat of government shall be maintained there.
"SECTION 7.
That all inhabitants continuing to reside therein who were
Spanish subjects on the eleventh day of April, eighteen
hundred and ninety-nine, and then resided in Porto Rico, and
their children born subsequent thereto, shall be deemed and
held to be citizens of Porto Rico, and as such entitled to the
protection of the United States, except such as shall have
elected to preserve their allegiance to the Crown of Spain on
or before the eleventh day of April, nineteen hundred, in
accordance with the provisions of the treaty of peace between
the United States and Spain entered into on the eleventh day
of April, eighteen hundred and ninety-nine; and they, together
with such citizens of the United States as may reside in Porto
Rico, shall constitute a body politic under the name of The
People of Porto Rico, with governmental powers as hereinafter
conferred, and with power to sue and be sued as such.
{416}
"SECTION 8.
That the laws and ordinances of Porto Rico now in force shall
continue in full force and effect, except as altered, amended,
or modified hereinafter, or as altered or modified by military
orders and decrees in force when this Act shall take effect,
and so far as the same are not inconsistent or in conflict
with the statutory laws of the United States not locally
inapplicable, or the provisions hereof, until altered,
amended, or repealed by the legislative authority hereinafter
provided for Porto Rico or by Act of Congress of the United
States: Provided, That so much of the law which was in force
at the time of cession, April eleventh, eighteen hundred and
ninety-nine, forbidding the marriage of priests, ministers, or
followers of any faith because of vows they may have taken,
being paragraph four, article eighty-three, chapter three,
civil code, and which was continued by the order of the
secretary of justice of Porto Rico, dated March seventeenth,
eighteen hundred and ninety-nine, and promulgated by
Major-General Guy V. Henry, United States Volunteers, is
hereby repealed and annulled, and all persons lawfully married
in Porto Rico shall have all the rights and remedies conferred
by law upon parties to either civil or religious marriages:
And provided further, That paragraph one, article one hundred
and five, section four, divorce, civil code, and paragraph
two, section nineteen, of the order of the minister of justice
of Porto Rico, dated March seventeenth, eighteen hundred and
ninety-nine, and promulgated by Major-General Guy V. Henry,
United States Volunteers, be, and the same hereby are, so
amended as to read: 'Adultery on the part of either the
husband or the wife.' …
"SECTION 14.
That the statutory laws of the United States not locally
inapplicable, except as hereinbefore or hereinafter otherwise
provided, shall have the same force and effect in Porto Rico
as in the United States, except the internal-revenue laws,
which, in view of the provisions of section three, shall not
have force and effect in Porto Rico.
"SECTION 15.
That the legislative authority hereinafter provided shall have
power by due enactment to amend, alter, modify, or repeal any
law or ordinance, civil or criminal, continued in force by
this Act, as it may from time to time see fit.
"SECTION 16.
That all judicial process shall run in the name of 'United
States of America, ss: the President of the United States,'
and all criminal or penal prosecutions in the local courts
shall be conducted in the name and by the authority of 'The
People of Porto Rico'; and all officials authorized by this
Act shall before entering upon the duties of their respective
offices take an oath to support the Constitution of the United
States and the laws of Porto Rico.
"SECTION 17.
That the official title of the chief executive officer shall
be 'The Governor of Porto Rico.' He shall be appointed by the
President, by and with the advice and consent of the Senate;
he shall hold his office for a term of four years and until
his successor is chosen and qualified unless sooner removed by
the President; he shall reside in Porto Rico during his
official incumbency, and shall maintain his office at the seat
of government; he may grant pardons and reprieves, and remit
fines and forfeitures for offenses against the laws of Porto
Rico, and respites for offenses against the laws of the United
States, until the decision of the President can be
ascertained; he shall commission all officers that he may be
authorized to appoint, and may veto any legislation enacted,
as hereinafter provided; he shall be the commander in chief of
the militia, and shall at all times faithfully execute the
laws, and he shall in that behalf have all the powers of
governors of the Territories of the United States that are not
locally inapplicable; and he shall annually, and at such other
times as he may be required, make official report of the
transactions of the government in Porto Rico, through the
Secretary of State, to the President of the United States:
Provided, That the President may, in his discretion, delegate
and assign to him such executive duties and functions as may
in pursuance with law be so delegated and assigned.
"SECTION 18.
That there shall be appointed by the President, by and with
the advice and consent of the Senate, for the period of four
years, unless sooner removed by the President, a secretary, an
attorney-general, a treasurer, an auditor, a commissioner of
the interior, and a commissioner of education, each of whom
shall reside in Porto Rico during his official incumbency and
have the powers and duties hereinafter provided for them,
respectively, and who, together with five other persons of
good repute, to be also appointed by the President for a like
term of four years, by and with the advice and consent of the
Senate, shall constitute an executive council, at least five
of whom shall be native inhabitants of Porto Rico, and, in
addition to the legislative duties hereinafter imposed upon
them as a body, shall exercise such powers and perform such
duties as are hereinafter provided for them, respectively, and
who shall have power to employ all necessary deputies and
assistants for the proper discharge of their duties as such
officials and as such executive council. …
"SECTION 27.
That all local legislative powers hereby granted shall be
vested in a legislative assembly which shall consist of two
houses; one the executive council, as hereinbefore
constituted, and the other a house of delegates, to consist of
thirty-five members elected biennially by the qualified voters
as hereinafter provided; and the two houses thus constituted
shall be designated 'The legislative assembly of Porto Rico.'
"SECTION 28.
That for the purposes of such elections Porto Rico shall be
divided by the executive council into seven districts,
composed of contiguous territory and as nearly equal as may be
in population, and each district shall be entitled to five
members of the house of delegates.
SECTION 29.
That the first election for delegates shall be held on such
date and under such regulations as to ballots and voting as
the executive council may prescribe. … At such elections all
citizens of Porto Rico shall be allowed to vote who have been
bona fide residents for one year and who possess the other
qualifications of voters under the laws and military orders in
force on the first day of March, 1900, subject to such
modifications and additional qualifications and such
regulations and restrictions as to registration as may be
prescribed by the executive council. …
{417}
"SECTION 32.
That the legislative authority herein provided shall extend to
all matters of a legislative character not locally inapplicable,
including power to create, consolidate, and reorganize the
municipalities, so far as may be necessary, and to provide and
repeal laws and ordinances therefor; and also the power to
alter, amend, modify, and repeal any and all laws and
ordinances of every character now in force in Porto Rico, or
any municipality or district thereof, not inconsistent with
the provisions hereof: Provided, however, That all grants of
franchises, rights, and privileges or concessions of a public
or quasi-public nature shall be made by the executive council,
with the approval of the governor, and all franchises granted
in Porto Rico shall be reported to Congress, which hereby
reserves the power to annul or modify the same.
"SECTION 33.
That the judicial power shall be vested in the courts and
tribunals of Porto Rico as already established and now in
operation, including municipal courts. …
"SECTION 34.
That Porto Rico shall constitute a judicial district to be
called 'the district of Porto Rico.' The President, by and
with the advice and consent of the Senate, shall appoint a
district judge, a district attorney, and a marshal for said
district, each for a term of four years, unless sooner removed
by the President. The district court for said district shall
be called the district court of the United States for Porto
Rico.
"SECTION 35.
That writs of error and appeals from the final decisions of
the supreme court of Porto Rico and the district court of the
United States shall be allowed and may be taken to the Supreme
Court of the United States in the same manner and under the
same regulations and in the same cases as from the supreme
courts of the Territories of the United States. …
"SECTION 39.
That the qualified voters of Porto Rico shall, on the first
Tuesday after the first Monday of November, anno Domini
nineteen hundred, and every two years thereafter, choose a
resident commissioner to the United States, who shall be
entitled to official recognition as such by all Departments,
upon presentation to the Department of State of a certificate
of election of the governor of Porto Rico, and who shall be
entitled to a salary, payable monthly by the United States, at
the rate of five thousand dollars per annum: Provided, That no
person shall be eligible to such election who is not a bona
fide citizen of Porto Rico, who is not thirty years of age,
and who does not read and write the English language.
"SECTION 40.
That a commission, to consist of three members, at least one
of whom shall be a native citizen of Porto Rico, shall be
appointed by the President, by and with the advice and consent
of the Senate, to compile and revise the laws of Porto Rico; also
the various codes of procedure and systems of municipal
government now in force, and to frame and report such
legislation as may be necessary to make a simple, harmonious,
and economical government, establish justice and secure its
prompt and efficient administration, inaugurate a general
system of education and public instruction, provide buildings
and funds therefor, equalize and simplify taxation and all the
methods of raising revenue, and make all other provisions that
may be necessary to secure and extend the benefits of a
republican form of government to all the inhabitants of Porto
Rico."
{418}
"There are now 800 schools in Porto Rico, and 38,000 pupils
attending them, while there are 300,000 children of school age
for whom there are no accommodations. But the commissioner
expresses the hope that gradually the great illiteracy in
Porto Rico will be reduced, and the people prepared for the
duties of citizenship in a democracy by means of the schools
that shall be established. … The total expenditure for
education in Porto Rico from the 1st of May to the end of
September was $91,057.32."
{419}
PORTUGAL: A. D. 1891-1900.
Delagoa Bay Arbitration.
See (in this volume)
DELAGOA BAY ARBITRATION.
PORTUGAL: A. D. 1898.
Alleged Treaty with Great Britain.
PORTUGAL: A. D. 1899.
Reciprocity Treaty with the United States.
PRATT, Consul:
Interviews with Aguinaldo at Singapore.
PREHISTORIC DISCOVERIES.
PRESS, The:
Relaxation of restrictions in Poland.
PRESS, The:
Prosecutions in Germany.
PRETORIA: A. D. 1894.
Demonstration of British residents.
PRETORIA: A. D. 1900.
Taken by the British forces.
{420}
PRINCETON UNIVERSITY:
Celebration of 250th anniversary.
Assumption of new name.
PROGRESSISTS,
PROGRESSIVES.
PROTECTIVE TARIFFS.
PRUSSIA: A. D. 1899-1901.
Canal projects.
PRUSSIA: A. D. 1901.
Bicentenary celebration.