LEGAL CONSIDERATIONS FOR THE ELDERLY

 

Traditional norms and values of the Indian society lay stress on providing care for the Elderly.  However, due to the withering of the joint family system, a large number of Elderly are not being looked after by their family.  Consequently, many older persons particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional negligence and to lack of physical and financial support.  This clearly reveals that age has become a major social challenge and there is a need to give more attention to the care and protection for the older persons.  The Indian Penal Code does allow parents to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973, the procedure can be both time consuming as well as expensive.

 

After working throughout life, for  about  40  years,  there comes a time in retirement  when monthly cheques stop.  If one was prudent enough, one might have saved substantial sums of money and assets to live well and comfortably on retirement.  This is the time you have been looking forward to and enjoy now with certain precautions.

 

Estate Planning

This refers to the planning of the distribution of various assets of an individual at the time of death.  Not undertaking this planning often leads to disputes within the family at a later date.  Hence, one should undertake seriously and with thought this kind of work.  It does not mean merely to write one’s WILL i.e. a document by which a person called the Testator appoints Executors to administer his estate after his death and directs the manner in which it is to be distributed to the beneficiaries is specified therein.  Hence, it needs to be done with due diligence so that there is little problem about the Estate within the family when one dies.  In fact, it has to be done the moment one has assets whatever may be the age.  The Will may be revised any number of times, with the change in circumstances like marriage, death and legal heir, purchase of property and so on.

 

10 Things you should know about a WILL

 

1. It should specify how all the inheritable property and wealth (called the Estate) is to be divided and mention clearly to whom it goes to (Probate).

 

2. It is good to plan ones Estate.  Further, one can save on taxes by creating a Trust and mentioning gifts

 

3. A lawyer is not required for a simple Will, but if there are complex issues or disputes likely to arise subsequently  it is advisable to get legal guidance in the matter.

 

4.  A Will needs to be signed in the presence of two witnesses; by having  it duly registered before the appropriate Authority, it  avoids the lengthy process of probate which may cost upto 3% of the value of the property, besides causing delays and incurring lawyersâ€?fees. 

 

5.  Specify that  upon death your Estate goes to your spouse if you want it to â€?do not assume it is automatic.  Be realistic â€?property cannot be divided into tiny bits,. Include all heirs including married daughters.  If you desire to exclude any member of your family, please specifically so state for reasons set out therein.

 

6. It is advisable to share with your spouse the contents of your Will and where it is kept i.e. in whose custody. You may, have copies in two different places for easy access.

 

7.  Do not disclose to the contents of your Will to your legal heirs. Keep it away from them especially if you  know they may pressure you to alter/amend it.

 

8. The Will can be changed during your lifetime. The change may be required if beneficiaries die or circumstances change.

 

9. There is no Stamp Duty when property is transferred through the instrument of a Will.

 

10. The Will can be revised any number of times.

 

The Will is required to be written when one is in sound physical and mental condition preferably get it registered before the Registrar.  The Will clearly mentions the names and age of the legal heirs, their addresses and other relevant details.  In the case of an unregistered Will, many institutions insist that the same be probated before a competent Court having jurisdiction.  This is a misconception in the minds of many that in case a property is owned by a spouse, the same will be inherited by the surviving spouse on demise.  This is not the legal position as in the absence of such specific declaration; the entire property would be divided equally amongst all heirs.  Hence, the wife must insist that her husband do write and register the Will. Generally, while writing the Will, in the first instance, everything should be given to the spouse, and on his/her death, another new Will to be written and registered because the property received from the deceased spouse gets amalgamated with the surviving person.  Childless couples or single persons should also write a Will otherwise many legal heirs spring upon the death of such persons. 

 

 

Nomination and Will

The general assumption is that a nominee for NSC, LIC Policies, Fixed Deposits, Mutual Funds, Provident Fund and Saving Bank Account is the legal heir for the proceeds for which he was nominated.  However, the Supreme Court in the case of Sarbati Devi Vs. Usha Devi in 1984 held that  mere  nomination under Section 39 of the Insurance Act, 1938, does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the respective policies on the death of the Assured.  The nomination only indicates the person who is authorized to receive the amount on payment.  The amount, however, may be claimed by the heirs of the Assured in accordance with the law of succession governing them.  Hence, one needs to have a Will in place in order to ensure that the person of your choice receives the amount.

 

 

 

Finances

It is good to maintain an Asset Register that has information about bank accounts, locker no. and bank, details of shares, mutual funds, property deeds and other connected papers, passport details, provident fund account, PPF account, bank details, election  card,  pan no., details of jewellery, gold and other precious metals/stones should be fully set out.  In the absence of an Asset Register, the spouse or the relatives spend months/years searching and listing assets.  Keep photocopies and put originals in a bank locker.

 

After attaining the age of 60 years, it is time to re-assess your assets and risks.  A conservation of capital becomes an important decision while allocating investments.  Risk profile of  senior citizens is towards low risk and low volatility. Such as PPF, Post Office Monthly Schemes (POMS), Fixed Deposits with Banks, Senior Citizens Saving Schemes and the like are the preferred choices. One can reduce taxation by investing in certain financial products under Section 80 C of the Income Tax Act.  Before operating with your savings, consider all the aspects of proposed investments so that you are not taken in by advertisements, assuring of an unusual high return and without adequate safety. At 60 years, it is more reasonable to put money in five yearsâ€?Fixed Deposits in a bank which generally gives 9 to 9.5% interest per annum rather than putting money in ELSS which is based on Equity Income Tax Return. 

 

Always empower your spouse with financial knowledge.  Most Indian ladies whether educated, uneducated, employed, unemployed are highly dependent on their husband for financial matters.  They believe that it is a man’s domain, consequently, suffer heavily when widowed.

 

Keep cheque books safely.  While writing a cheque, start immediately after the word Pay and do not leave spaces between words or figures.  Avoid making alterations, instead write a new cheque.  Always draw a line through any unused space.  Remember to cross the cheque when issuing the same.    

 

When assisting someone elderly in their finances be aware of financial considerations surrounding the disposition of an elder’s assets and estate. There are also day to day financial considerations that need to be thought about, so as to help ensure that elders and family members will continue to be able to live as comfortably as possible.  Accordingly, in addition to completing a Will, it is important to make sure that beneficiaries are appropriately named and they are up-to-date on financial assets including retirement accounts, pensions, life insurance plans and other assets.

 

Income Tax Returns

We are educated and are capable of filling up our own Income Tax Returns.  You need not necessarily rely upon a Chartered Accountant since the format for purposes of income tax has been simplified.  It is desirable that one should fill one’s Income Tax Return and submit the same in the concerned Ward/Circle as prescribed.

 

 

Emergency Funds

It is necessary to have an Emergency Fund of six to twelve monthsâ€?expenses which helps through rainy day or say difficult times.  It takes only one uncertain situation to throw everything haywire.  It  is better  to  depend  on  your  Emergency Fund instead of borrowing from friends and relatives.

There is no need for you to leave too much for posterity.  It is your money, you and your spouse must fully utilize the same to maintain a decent standard of living with respect and dignity.  Let posterity learn to earn.  Always remember, wealth is not his that has it but his, that enjoys it. 

 

Healthcare Insurance Policy

It is also imperative that long term Healthcare Insurance Policy be invested early in life since medical care amongst the elderly is at a premium.  Usually, there are a set criteria for medical coverage and not all conditions or situations will result in benefits even though the Insurances have been paid for in advance.  The reason is that some plans may have upfront eligibility requirements.  Elders who were already having  a  pre-existing condition may be denied coverage. Do not give up  purchasing supplemental Medical Insurance Coverage may be worth exploring.

 

Trusts

A Trust is a legal instrument into which eldersâ€?assets can be contributed.  Monies contributed into the Trust are no longer the property of the elder.  But instead now belong to the Trust.  The Trust can be set up in various ways so as to pay out a small income to the elder during his lifetime and then disburse the remainder of the assets to beneficiaries upon the elder’s death.  The major benefit of setting up a Trust is to shield assets that would otherwise need to be sold and have to be paid for medical care.  In order for this procedure to be implemented, the Trust must be set up years in advance to provide for such contingencies.

 

Maintenance and Welfare of Parents and Senior Citizens Act, 2007

A large number of elderly persons particularly widowed women are not being looked after by their families.  To combat social challenge and to give legal care and protection, under which parents can claim maintenance from their children, simple, inexpensive and speedy provisions have been made in the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.  It casts an obligation on persons who inherit the property of their aged relatives to maintain them and to make provisions for setting up old age homes for providing maintenance to the indigent older persons and to provide better medical facilities to the senior citizens and to make provisions for protection of their life and property. 

 

The Act to  provide  for effective  maintenance  and  welfare  of  parents  and  senior citizens, guaranteed and recognized under the Constitution of India was passed by both Houses of Parliament in December 2007.  As per the Act, a parent or a senior citizen who is unable to maintain himself from his own earnings or out of the property owned by him against one or more of his children, not being a minor, and in the case of childless senior citizen against his relatives who would inherit his property, the Act provides appropriate mechanism to provide need based maintenance to the parents and senior citizens.  Further, provides for better medical facilities to senior citizens and sets out a suitable institutional mechanism for protection of life and property of elders.  Hence, the Act provides a three month jail term, if children do not look after their own parents.  This has been done deliberately as children have a lot of resources which the old people do not have.  Hence, the elders may approach designated Tribunals set up in each District across the country.  

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Right to Information Act, 2005

The RTI Act is most beneficial to senior citizens.  In case one’s work is pending in any government and/or public sector organization who are insensitive to respond promptly and candidly to your request for information or details either pertaining to yourself or the community, you may follow the RTI route. 

 

Action to be taken on death of property holder

Procure   immediately   ten   original   Death   Certificates  from  the  Municipal Corporation/Committee of the city in which the deceased was living, ensuring that the name of the deceased is correctly mentioned.  If death has taken place in a hospital, please check from the concerned hospital from where the Death Certificate can be obtained.  However, in case death has taken place at residence, please check with the cemetery/cremation ground regarding the Municipal Office from where the Death Certificate will be available.

 

In the case bank account is a joint one, before informing the Bank of the death, it is advisable to withdraw the money upto a certain extent and leave only a small amount in the account.  In  the  meantime,  collect  all  information  about  the  bank accounts, fixed deposit accounts, mutual funds, shares and the like where the name of the deceased person is first named.  Thereafter, meet the respective Managers and inform them of the death of the account holder.  Also obtain different Forms required to be filled for transferring the money to the widow and/or   any   other   person   and  take  immediate  action  on  receipt  of  the  Death Certificate.  If any property of the deceased is on rent, immediately inform the tenant with the request to remit the rent to the successor of the deceased.  It may be mentioned that in case there is a Registered Will, the problem of transfer of funds and immovable property are minimized; otherwise transferring authority and Public Sector Undertaking banks take a lot of time to transfer the funds of the deceased to the legal heirs.

 

Reverse Mortgage

In 2007, the Finance Minister announced the creation of reverse mortgages.  It gives liquidity to a senior citizen against the equity in their homes.  It was introduced to help cash strapped senior citizens, whose sources of income are limited to meet their daily needs.  A reverse mortgage would neither be classified as transfer of revenue nor would it be treated as income.  A senior citizen older than 60 years, can mortgage his house, which should have a clear title and can use the equity in the house to get an income either as a lump-sum or as monthly payments or a combination of both for a period extending to fifteen years.  The National Housing Bank, a subsidiary of the Reserve Bank of India, is entrusted with regulating the programme.  Hence, another avenue is available to the senior citizen to live with dignity in his own home.

 

Finally, do not part with the original or photocopy of the Will and any other property document, in any circumstances, because hostile persons can destroy or make copies of the same.  Original documents should be kept in the locker and only photocopies be retained in your possession.  Please also do not give your signature on plain paper or keep any original documents in your office drawer; these are more safe in your home.  According to Helpage India, majority of elderlies are abused by their own children.  A whopping 47.3% cases of elder abuse are reported to have children as perpetrators.  Hence, remember, you can write/re-write your Will, change your nominee, but do not forget that you cannot revoke a gift or a relinquishment deed.  Further, avoid giving money, property and power of attorney to anyone including children when alive.  It is better to learn to say No rather than regret later.  However, the final decision is yours alone.   

 

 

 

 

 

 

 

 

 

 

 

 

 

Laws Regarding Maintenance and Care of Senior Citizens and Parents

 

Law

Requirement

Maintenance Allowance

Constitution of India, Directive Principles, Article 41

The State shall, within the limits of its economic capacity and development, make effective provision for…old age, sickness and disablement, and in other cases of undeserved want.�

Not justiciable

Code of Criminal Procedure (Chapter IX, Section 125(1)(2))

Requires persons who have sufficient means to take care of his or her parents if they are unable to take care of themselves.

Rs 500/month maximum

Hindu Adoption and Maintenance Act, 1956  

Requires Hindu sons and daughters to maintain their elderly parents when parents are unable to maintain themselves

To be determined by court

Maintenance and Welfare of Parents and Senior Citizens Act, 2007

Requires the children/beneficiary of a senior citizen means to maintain such senior that he would inherit the property of such senior

To be determined by the Tribunal �Welfare means provision for food, health care, Recreation Centre and other amenities necessary for the senior citizen

 

Laws in Some Countries Regarding Elder Care

 

Act

Purpose/Broad Provisions

Sri Lanka: Protection of the Rights of Elders Act, 2000

Establishes National Older Persons Council; requires children to provide care for their parents and makes provisions for parents to obtain maintenance from children; requires state to provide appropriate residential facilities to destitute elderly without children.

United States: Older Americans Act of 1965

Creates the Administration on Aging within the Department of Health, Education and Welfare; authorises grants to States for community planning, services for elderly, and research and training in the field of aging.

China: Law of the People’s Republic of China on Protection of the Rights and Interests of the Elderly, 1996

Places responsibility on families to care for elderly; establishes a state-based old-age insurance system, increases legal protection of elderly with speedy court procedure.

South Africa: Older Persons Act no 13 of 1996

Provides strict controls for registered old-age facilities; makes abuse of the elderly a criminal offence; creates social and cultural community-based services for elderly.

Canada (Saskatchewan & Manitoba): Parents Maintenance Act, 1978 & 1993 respectively

Mandates children to pay maintenance to dependent parents up to $20 per week.

 

 

   

 

   

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