Elder Law glossary
Elder law sits at the intersection of capacity, succession, aged care, and family law. Key statutes include the Guardianship Act 1987 (NSW) and its state equivalents, the Powers of Attorney Act 2003 (NSW), and the Aged Care Act 1997 (Cth). This glossary covers 40 commonly used terms.
This is a glossary of 40 key terms used in Australian elder law. Each term has a plain-English definition and, where applicable, a reference to the Guardianship Act 1987 (NSW), Powers of Attorney Act 2003 (NSW), or federal aged care legislation.
Definitions
ACAT (Aged Care Assessment Team)
The assessment team (to be integrated under the 2025 reforms) that assesses eligibility for Commonwealth-subsidised aged care.
Advance care directive
A document recording a person's wishes for future medical treatment. Terminology and formal requirements vary by state.
Aged Care Act
The Aged Care Act 1997 (Cth) — the principal federal statute regulating Commonwealth-funded aged care services. Replaced by a new Act from 1 July 2025.
Attorney
A person appointed under a power of attorney to make decisions on behalf of the principal. Subject to fiduciary duties.
Binding nomination (super)
A nomination directing a super trustee to pay death benefits to specified dependants. Relevant to elder estate planning.
Capacity (decision-making)
The legal and cognitive ability to make a particular decision. Capacity is decision-specific, not global — presumption of capacity applies.
Capacity assessment
An assessment by a medical practitioner or specialist of a person's decision-making capacity for a specific decision.
Carer
A person who provides unpaid care to a person who, because of disability, illness, or age, cannot care for themselves.
Challenge to will
A claim that a will is invalid (for example, for lack of capacity or undue influence) or that provision should be made for an eligible person.
Compulsory care order
An order authorising care despite a person's refusal, made by a state tribunal on strict criteria.
Consent to treatment
The informed decision of a person with capacity to medical treatment. In the absence of capacity, a substitute decision-maker consents.
Elder abuse
A single or repeated act, or lack of action, causing harm to an older person within a relationship of trust. Can be physical, financial, psychological, or neglect.
Enduring guardian
A person appointed under an enduring guardianship to make lifestyle and health decisions if the principal loses capacity.
Enduring power of attorney
A power of attorney that continues (endures) despite the principal's loss of capacity. Limited to financial decisions in most states.
Family provision
A claim by an eligible person for provision out of a deceased estate under Chapter 3 of the Succession Act.
Fiduciary duty (attorney)
The attorney's duty to act in the principal's best interests, avoid conflicts, and account. Breach may give rise to restitution.
Financial abuse
The unauthorised use of an older person's money or property, often by a family member or attorney — a major category of elder abuse.
General power of attorney
A power of attorney that ceases on the principal's loss of capacity — contrast with enduring power.
Granny flat arrangement
An arrangement where an older person transfers assets to a relative in exchange for accommodation and care. Centrelink and tax rules apply.
Guardian
A person appointed by a guardianship tribunal to make personal, lifestyle, or health decisions for a person who lacks capacity.
Guardianship order
An order of a guardianship tribunal appointing a guardian for a person who lacks capacity for the relevant decisions.
Home care package
A Commonwealth-subsidised package of home care services for older Australians. Levels 1-4 reflect increasing need.
Incapacity
The state of being unable to make a specific decision by reason of cognitive impairment or other condition.
Informal care
Unpaid care provided by family, friends, or neighbours. Legally distinct from formal aged care but relevant to elder abuse claims.
Mutual will
Wills made by two persons with an enforceable agreement not to revoke. Common in blended family planning.
NCAT
The NSW Civil and Administrative Tribunal — hears guardianship and financial management applications in NSW.
Nominated representative
A person nominated by an aged care recipient to be their first point of contact with the provider. Does not confer decision-making authority.
NSW Trustee and Guardian
The statutory office that acts as financial manager or guardian of last resort when no family member is suitable.
Power of attorney
A legal document under which one person (the principal) authorises another (the attorney) to act on their behalf in financial matters.
Presumption of capacity
The legal starting point that every adult has capacity to make their own decisions. The burden rests on the person alleging incapacity.
Principal (power of attorney)
The person who grants a power of attorney. Must have capacity at the time of making.
Public Guardian
The statutory office appointed as guardian of last resort where no family member is willing or suitable.
Refundable Accommodation Deposit (RAD)
The lump sum paid on entry to residential aged care, refunded (less deductions) on exit. Alternative is daily accommodation payment.
Residential aged care
Commonwealth-subsidised permanent or respite care in an approved residential facility.
Restrictive practices
Practices that limit a person's rights or freedom in residential aged care — regulated under Commonwealth standards with strict authorisation rules.
Statutory Declaration (capacity)
A statutory declaration used to evidence a person's capacity or wishes at a point in time. Admissible in probate and capacity disputes.
Substitute decision-maker
A person who makes decisions on behalf of a person who lacks capacity — by appointment (attorney, guardian) or default (spouse, relative).
Testamentary capacity
The capacity required to make a valid will — understand the nature of the act, extent of assets, and moral claims of those the testator should consider.
Undue influence
Pressure or coercion overbearing the will of a vulnerable person. Can invalidate a gift, will, or transaction.
Will
A document setting out the testator's wishes for the distribution of their estate on death. Governed in NSW by the Succession Act 2006.
Research these terms in context
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These definitions are general explanations for educational purposes — not legal advice. Always verify against current legislation and case law before relying on them in a client matter.
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