Eldercare and Elder Law in the Modern Age

 Elder Law

Growing old gracefully and happily is a desire and aim for many if not all of us. One may be single, divorced, cohabiting, with a spouse, with children or otherwise living with pets one views as furry family members. Although nothing in life is guaranteed, with some careful and meticulous planning one can have a comfortable and secure experience of one’s golden years.

What is Elder Law?

The Age of Majority only defines when a person attains adulthood, which is 18, whereas the Minimum Retirement Age Act 2012 which was gazetted and came into force on 01.07.2013, only sets the minimum retirement age of a private sector employee, at 60 years of age. By the next two decades, it could well be the case that Malaysia will be a silver population with almost 20% of the citizenry being in their golden years.  We see that the elderly are defined as aged persons in the Private Aged Healthcare Facilities and Services Act 2018 to mean those persons who are 60 years of age and above.  

Elder Law thus encompasses any and all areas of law that is angled specifically to the legal and physical protection needs of the elderly or as we say in Malaysia, our warga emas. As a simplification, elder law would cover a myriad of legal issues that people will invariably face as they age, especially with health, housing, financial well-being and long- term care.

There are legal documents and instruments that assist in planning out one’s elder experience. Instruments that come into discussion here are Wills and testaments, codicils that seek to amend the former, trust deeds and instruments, POA and medical POA, Living Wills, Do-Not-Resuscitate (DNR) instructions, tertiary instructions for guardians and caregivers during the period when advanced care becomes necessary.

Eldercare protection of rights, confidential estate and succession planning, deciding how one would want one’s assets both real and personal to be managed and later parcelled out to loved ones, are critical in order to ensure that one’s needs, wishes and feelings are protected, with the goal to enjoy a peaceful and dignified life in the golden years. Heaven forbid one be left to fend for one’s self during this most vulnerable stage of life.

Knowing your rights and being able to defend against incompetency orders, avoiding contentious probate and intestate estates with proper succession planning is a serious responsibility that one owes to one’s self, to loved ones and to next-of-kin.

Last Will and Testament

Making a Will is making sure one settles all affairs and is akin to giving celestial instructions from Beyond. Written Instructions in black and white, or video instructions in certain circumstances to deal with real and personal properties must be carried out by the testator/testatrix/maker of a lawfully executed valid Will which is made pursuant to the Wills Act 1959.

The Last Will and Testament takes effect upon the death of the testator/testatrix (the person making the Will). The wordings of the Will are vital so as to avoid contentious probate. Even if you have written a Will, any updates, revocations and additions can be done using a Codicil. A Codicil is a lawfully executed amendment to the Last Will and Testament and thus A Codicil must be lawfully executed and witnessed just as is requirement when executing aWill.

A good place to start will be to list down all real and personal properties and the beneficiaries of the said properties. Then it is good to identify at least 2 trusted executors who will be able to carry out his/her duties to seek probate for the Will and to ensure that the clauses in the Will are adhered to in full. It is best to consult a lawyer who practices succession law to ensure that the clauses reflect the actual intentions of the Testator/Testatrix clearly. At the point of executing the Will, any two witnesses who are not beneficiaries or spouses of the beneficiaries must attest to the signature of the testator/testatrix to ensure that the testator/testatrix was not coerced, pressured and/or unduly influenced in any way and that he/she/they have the lucidity and mental capacity for the Will to be valid.

Living Will

Complications arise in situations where something happens which results in one surviving an event but becoming unable to make any decisions independently or to take any action pertaining to their own needs, wishes and feelings? This is most common when one is suffering from mental incapacity or in a persistent vegetative state. Being helpless and at the mercy of others would be the foregone conclusion of how this person’s story would end.

Thus to avoid this event horizon, one must make preparations for any and all eventualities and prepare written directions and/or instructions for one’s medical and caregiving needs. The written directions and/or instructions are popularly known as a Living Will. Although in Malaysia there is an absence of a legal framework to enforce a Living Will, an advance directive would cover situations where the effect of a living will is required, and advance directives can be complied with by the next-of-kin rather than having them struggle to make difficult decisions. A Living Will is an advanced directive that takes effect when a certain event takes place, where one is incapacitated and unable to be independent. The individual can state his/her specific healthcare wishes, care arrangements, the treatment he/she wants to have and even DNR instructions. 

In terms of enforcement of Living Wills aka advanced directives, there are other avenues in which an individual will be able to ensure that his/her desires are carried out for which your Counsel would be able to advise you, dear Reader.

Power of Attorney (POA)

In Malaysia, instead of a Living Will in Malaysia, one can also opt to have a POA to state the provisions and directives for the trusted person vested with the power to act, known as the agent. A POA can be general or specific, conferring the power to act to the agent upon an event happening to the individual. The POA can also be drafted with limited scope to cover a certain issue or subject matter, and within a stated timeframe. For enforceability, the POA is lodged with the Malaysian Courts. A POA does not override a Will as it ceases to be effective upon the death of the individual who issued the POA.

Trust Deed Instruments

A Trust Deed is an instrument where the individual authorises a Trustee to manage his/her assets for the sake of Beneficiaries or sets out detailed terms and instructions on how said assets are to be managed and divided. This includes dealings on real and personal, movable and immovable properties. Unlike a Will, Trusts comes into effect immediately during the lifetime of the individual. A Trust can continue to exist even after the death of the individual where the terms of succession in the Trust should be clearly spelt out.

Conclusion.

Having some planning for the future somewhat mitigates the practical challenges that loved ones have to experience. The emotional upheaval of watching their loved ones age and become frail will be heavy enough for them. Protect yourself and your loved ones. Do find Succession lawyers from the Malaysian Bar Directory and get things started to get your affairs in order, whatever your age. You see, succession planning is important at any age. 

This elder law note is a very brief and basic commentary, and is not to be taken as legal advice. 

We suggest that you find a lawyer you can connect with and whose fees are suitable to you and your budget. Do not delay with this crucial area of life-planning. All the best. 

Best regards from Anne and Melani at Messrs Varghese Yeoh and Co.

TEMPORARY MEASURES FOR REDUCING THE IMPACT OF CORONAVIRUS DISEASE 2019 (COVID-19) ACT 2020

Preliminary thoughts on the COVID-19 law gazetted today

The legislation for COVID-19 was just gazetted today after the Royal Assent a week ago on 16 October 2020.  There are 59 sections in total covering modifications to the legislation pertaining to the Public Authorities Protection Act 1948, the Insolvency Act 1967,  the Hire-Purchase Act 1991, the Consumer Protection Act 1999, the Distress Act 1951, the Housing Development (Control and Licensing) Act 1966, the Industrial Relations Act 1967, the Private Employment Agencies Act 1981, the Land Public Transport Act 2010, the Commercial Vehicles Licensing Board Act 1987, the Courts of Judicature Act 1964, the Subordinate Courts Act 1948, and the Subordinate Courts Rules Act 1955.

For now for our introductory post on this new piece of legislation, we will focus briefly on the very real issue of creditors being unable to collect their debts from shady debtors, and genuine debtors being unable to meet their obligations to settle their debts and basically needing more time to make good on their debts.  

Obligations for Inability To Pay

All obligations for inability to pay since the governmental COVID-19 restrictions started in April 2020, under contract, hire-purchase, debt-repayment, are by this legislation, put on hold until 31.12.2020 for debtors to have some breathing space in handling the prospect of debt collectors coming a-knocking to breathe down their necks. 

Creditors to give Time (For Contractual Obligations affected by COVID-19)

The Act provides that the inability of any party to perform their contractual obligations due to COVID-19 shall not give rise to the other party exercising their rights under the contract. The categories of contract include any work related to contracts for supply services, performance contracts, professional services, leases and tenancies of non-residential properties whether landed or stratified,  contracts for goods obtained under hire-purchase and credit arrangements. 

Moratorium

At first glance it appears that no creditor can sue for inability to pay, as the COVID-19 ACT 2020 extends a moratorium for debtors until 31.12.2020. Different categories of legislation modified above, have differing start and end dates for the moratorium. After a further look at the clauses of the Act, it is seen that this is only in respect of the inability to pay arising as a result of the COVID-19 pandemic. This might give a line to debt recovery options for creditors to go after shady debtors. 

As for those who bought goods under credit arrangements, the debtor who bought things on credit and cannot pay, can return the items to perhaps cancel out the debt. The question arises what happens then when these items have depreciated in value upon purchase, as the debt value would not be paid back in full by the return of the goods. 

Mediation

It must be noted that Section 7 to Section 12 seems to provide that a client may renege on the monthly professional fee due to their service provider if during the Covid period their inability to comply with payment obligations resulted from actions taken by the Government under the Prevention of Diseases Act. And it appears that the sole and only resolution to that breach as seen in Section 9, is for the parties to come to mediation and  achieve settlement. 

Is Mediation the Only Option Then? 

Failure or Success of Mediation:  if aggrieved creditors are seeking dispute resolution in respect of breach of contract for inter alia, unpaid debts, breach of hire-purchase and credit arrangements, it appears that under Section 9, their only option is binding mediation settlement. One complication though, in the event of inability to pay resulting in contract breach, if parties cannot agree and no settlement is reached, the question then arises whether reneging the contract plus failure of mediation settlement necessarily results in reference for dispute resolution to the Honourable Courts of Malaya. The COVID-19 Act cannot, in the interests of justice and equity, fully cancel out the jurisdiction of the Courts, at best what it can do, is to give debtors with a genuine inability to pay due to COVID-19 reasons, some breathing space. For all else, the Courts of Law await you and your dispute resolution processes. 

Appoint a lawyer for all your legal advisory, assistance and representation needs where your COVID-19 debt recovery options or debt defence needs are concerned. You may look at the Malaysian Bar Directory online to find lawyers in active private practice who may be the best fit for you.

Be safe in this new normal. Best regards from Messrs Varghese and Co

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DISPUTE RESOLUTION 101 CONTINUED: Family Law, Divorce Petitions

DISPUTE RESOLUTION 101 CONTINUED:  Family Law, Divorce Petitions

In the event there is indication that a marriage is going on the rocks: For the purposes of this blogpost we will write as if this is you, dear Reader:

Ground Zero: Go for family counselling with your counsellor of choice to see if counselling helps with repairing your marriage. The irretrievable breakdown of a marriage otherwise, ends in divorce or annulment of the marriage (separate Family Law 101s will be shared for annulments at a later date). For purposes of this  Divorce Petition101, we will focus on the preliminary processes leading up to the intention to litigate and to end the marriage with a decree of divorce. 

1.  Get your paper trail in order. 
This is for any assets owned by the parties, both jointly and separately. Keep a record also of all joint and single expenditure made on behalf of the family, and of the spouses. Marriage is after all a contract between the parties. 

2.  Try to keep things non-acrimonious, hard we know, for some breakups. 
At the very least, consider the savings of keeping things friendly. Joint petitions cost a quarter of contested petitions. Contested petitions are high stress for all parties concerned, the counsels included. You will be billed accordingly. 

3.  Keep copies of all communication between parties. 
This includes communication over social media. If you can export that chat text history, do it. Remember to take screen grabs too. 

4.  Write a chronology of events from the start of the marriage to the intention to file for divorce. This will be pages - long if it was a long marriage. It will be necessary for your counsel to have, in order to prep your case. Leave nothing out. Include all things related to the marriage which your lawyers need to know: 

• Mention in the chronology how and when you met your estranged spouse, how and when the relationship started, whether the families of both parties were on cordial terms, who proposed, and how was it carried out. 

• Mention how and when you became engaged and then married. Indicate whether you registered at JPN first through the civil ROM processes (that would be the point the marriage became legal), was there a religious wedding ceremony thereafter, how the reception was, and where was the first home you lived at, what would the parties consider their family home.

• Mention if there are children of the marriage if there are any. Detail when were they born, particulars of their main caregiver, the spouse who looked after the household and the kids day-to-day rearing and care, whether either parent had been a stay-at-home parent, did both parties work outside the home, how did things go in the initial years, how were the finances shared between the parties - "his, hers and ours" or one party held the purse strings. 

• State the moment when did the marriage start getting strained,  did the marriage start to break down, notable events relating to the strain and the breakdown (e.g. SGBV, domestic violence, affairs, financial mismanagement, et cetera), when did the breakdown reach a no-turning back point (irretrievable/point of no return).

• Set out if whether a separation of household occurred, when was the intention to separate, whether there had been any attempts to reconcile and work on the marriage to fix things, and if so how many attempts. What happened during all the attempts at reconciliation?

• Finally do set out the date the decision to file for divorce happened, and so on, the particulars of this i.e. whether this decision was mutual or not, and whether the parties can agree or not to things such as maintenance, joint/full child custody arrangements, taking into account the children's wishes and feelings, whether there would be joint living arrangements but separate households, or whether there is any intention for a total clean break of the family into two, and the parties are to live in 2 physically separate households, then the decision will be who the details pertaining to rights to the children for custody/visitation, the joint contents of the marital home, movables and personal assets, the library books, the motorbike, the car, the dog, the cat, and the goldfish. 

This is just a little semi-illustration of what to include in the chronology, you could go a different way following what is happening in your life of course. 

5.   Did we mention try to keep things non-acrimonious?
We did, and this is hard but important to attempt. Especially if there are children of the marriage. If this is impossible, then just try to avoid any additional stress in unnecessary confrontations, and leave things to your lawyer after you have instructed them accordingly. 
 
6.   Go for marriage counselling at JPN. 
The government will try to see if it is possible to resolve the differences and salvage the marriage. 

7.   Go to the marriage tribunal hearings at JPN. 
If matters are unable to be resolved and things are irretrievable, then the divorce is happening, isn' t it? :( Our sympathies on the ending of your marriage. Keep on keeping on and be strong.  

8.   Find family lawyers from the Malaysian Bar Directory and get things started. 
Just find a lawyer you can connect with, and whose fees you can afford to pay. Otherwise, approach the Legal Aid Centre at Bar Council for assistance (note that there is a means test requirement there). 

Best regards from Anne and Melani at Messrs Varghese and Co.

Last Will & Testament: Legal Capacity to Execute

Do persons with cognitive decline, have the legal capacity to execute their Last Will and Testament? It depends on a variety of factors related to their lucidity of thought, clearness of memory and clarity of understanding when setting out their wishes pertaining to their last testamentary dispositions.

In Malaysia, Section 3 of the Wills Act 1959 states that "except as hereinafter provided, every person of sound mind may devise, bequeath or dispose of by his will, executed in manner hereinafter required, all property which he owns or to which he is entitled either at law or in equity at the time of his death notwithstanding that he may have become entitled to the same subsequently to the execution of the will.”

Someone may be incapable of having the capacity to enter into contractual and/or commercial legal arrangements, however they may legally have the capacity to make testamentary dispositions as a result of lucid intervals in their mind, memory and understanding, throughout a temporary period.

It is during this scintilla temporis of mind, memory and understanding, that the law and judicial precedent recognise that a Last Will and Testament executed may be valid as long as the Testator or Testatrix is fully oriented and in control of their faculties during that period, whereby they are capable of understanding the nature of their act. A person therefore need not be in perfect health to have their will declared valid.

Appoint a lawyer for all your legal advisory, assistance and representation needs where drafting of your last will and testament is concerned. You may look at the Malaysian Bar Directory to find one that is the best fit for you.

You can also find Melani & Anne — at Messrs Varghese & Co.

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Our FB Updates

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For urgent matters, please avoid any social media messaging. Please call/ email / text us directly via our contact details provided on the panel to the right, to set up an appointment. 

Update for 2020:

During RMCO and the ongoing COVID-19 period, all client meetings, external appointments, and court attendances as far as possible, will be handled electronically.

Our brick and mortar office location at Leisure Commerce Square, PJS 8 Bandar Sunway, is open by appointment in advance, no walk-ins. We are contactable via email, telegram, and our telephone numbers as listed here. 

We have sanitization procedures in place and can only approve entry to those who are healthy,  have no recently travels and/or hospitalisation, nor related/connected to those who have a history of recent travel and hospitalisation. Please take note. #staysafe #waitforvaccine #dudukrumah

Best regards always from us — at Messrs Varghese & Co.

Be Careful of What You Promise. Words carry weight.

Words carry weight. Be careful of what you write, what you say, and what you promise.

Conduct your due diligence before you agree to anything or sign away any of your rights. This necessarily means appoint a lawyer for advice and guidance, before doing something you are unsure of, rather than wait till after something has happened. Prevention is better than cure.

Caveat Emptor. Buyer beware. Think and Act. Fikir dan Tindak.

Appoint a lawyer for all your legal advisory, assistance and representation needs. You may look at the Malaysian Bar Directory to find one that is the best fit for you.

You can also look for us — at Messrs Varghese & Co.

Our new office location

Greetings!

An early morning pic of Block A4 Leisure Commerce Square at Jalan PJS8/9 Bandar Sunway, along the Federal Highway, conveniently situated next to the Setia Jaya KTM Commuter & BRT Station, and just facing the Sunway-Motorola LDP overhead pass. We will be moving there in 2017 from our current location.

Our new office is to be on the ninth (9th) floor. Come find us, our address is on the right panel of this page! :-)

Best regards always from us — at Messrs Varghese & Co.

Messrs Varghese & Co

Messrs Varghese & Co was founded by Anne Victoria Varghese [LL.B (Hons) London, CLP, LLM Universiti Malaya]. She founded the firm in mid-2015, after having served variously in private legal practice and international public practice cumulatively for a decade in litigation, advocacy and international law issues, and having offered independent legal support services for 3 years thereafter. 

We are a general advisory, litigation and transactional practice. Our particular focus is on technology contracts review and advisory, corporate commercial matters, technology law and IP agreements, IR and employment matters, eldercare law and will writing, probate & intestate estate matters, family and child law, property matters, conveyance of properties, strata management issues, landlord & tenant matters. In addition, we provide assistance in actions for debt recovery in sales of goods & services, corporate debt recovery and execution matters, immigration & asylum application matters. We also assist clients with documentation review, discovery research, court trial transcriptions and trial getting-up services as well as general dispute resolution. 

We are able to advocate on specific appointment for cases involving survivors of sexual and gender-based violence, senior citizens facing eldercare issues, refugee children in detention, appeals in international refugee law, appeals against exclusion from international refugee protection, international criminal law and international humanitarian law.

To be sure, we are ready to serve and assist you in any legal issues you may have, large or small. We are tenacious, earnest, and dedicated, in fighting for your rights and best interests. We work with you, to find results. We look forward to providing you with conscientious, meticulous, and affordable legal services.

Do contact us any time for a consultation.

Best regards always from us — at Messrs Varghese & Co.