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.

COVID-19, MCO and Malaysian Immigration Checkout Memos for Domestic Helpers (FDW)

Jabatan Imigresen Selangor Memorandum Periksa Keluar/Selangor Immigration Checkout Memo for Domestic Helpers (FDW) and COVID-19 testing.

This brief note is for all of us Selangor denizens who are wondering what to do and where to go to get the Exit Memo (or rather, Checkout Memo), now that your domestic helper's contract is coming to an end and arrangements for returning home need to be made. This applies only if you send your FDW home in time before/as their visa expires at the end of their employment. 

We observed that Malaysian Immigration is still operating and their FDW services are still operating as usual.  Thus, bear in mind that there are administrative penalties (blacklists, fines, and jail time) for overstaying in Malaysia and the "sorry, MCO" excuse cannot be utilised as of right.  After you have done the Checkout Memo, in the event a total MCO lockdown happens in 2021 and/or the return flight is cancelled (either of which is hopefully not going to happen) we note that Immigration has so far given a grace period of 14 days after the end of the last 2020 MCO and the current MCO for the FDW to exit without having to redo their Exit Memo. 

Before Departure

So now, make your way to Jabatan Imigresen Selangor at Kompleks PKNS at Persiaran Tasik, Section 14, 40000 Shah Alam, Selangor.  Take the Lift to Level 2 Block E and go to the specific numbered Counter for FDWs whose visa is still valid and who has not overstayed yet due to the MCO. At present this is Counter 19-20, but the counter numbers do change. The place is labyrinthine but you'll get there as there are signages. Request for the  Memorandum Periksa Keluar/Checkout Memo to be issued. 

The Immigration Officer on Duty will request the following:

1. Photocopy of the FDW's passport pages that contain the biodata and latest visa. 

2. Photocopy of the Employer's NRID/MYKAD/Passport.

3. Flight ticket/e-ticket for the Intended Flight Date.

4. Letter of Application for the Checkout Memo.

Contents of the above letter-just state briefly that "I am the employer of Mr/Ms ABCS [Passport Number/Visa Expiry Date-copy attached] who has successfully completed their employment contract with me [Name/NRID/Passport#-copy attached] and they intend to exit Malaysia to return to their country of origin via Flight No XYZ[copy of e-ticket attached]. All their salary payments have been paid out successfully to Mr/Ms ABCS. Please proceed to issue the Memorandum Periksa Keluar/Checkout Memo in their favour. Many thanks in advance." Sign it and date it. It is up to you whether to put your contact details underneath your signature. We think it might be best to do so, but it is utterly up to you. 

5. Proof of Salary Payment.  The Immigration Officer is empowered to request, if necessary, for proof of all salaries paid to the FDW thus far. So far we have not had them ask our clients for this but you never know what can happen. Keep a pdf excel sheet of all payments made together with the salary payment confirmation slips in case this becomes necessary.

6. COVID-19 test clearance for all foreign workers

PCR or Antigen COVID-19 negative test certificate

Immigration seems not to request for the test clearance certificate for issuance of Checkout Memo, but you have to produce the test clearance certificate at the airport to get to the boarding gate as it appears to be a requirement of most if not all of the receiving countries. Nothing is stated on the Immigration website to this effect, but this is from the recorded experience of those who have recently gone through the process. 

We also note that Air Asia and MAS both do caution that passengers must have a PCR or Antigen COVID-19 negative test certificate dated not more than three days (72 hours) prior to departure. This caution is also noted on the website app of the Indonesian Health Ministry and various other health ministries of other receiving countries. In particular,  most of the regional authorities (Singapore,Thailand, Philippines, India, Bangladesh, Korea)  seem to have similar requirements currently for the COVID-19 test certificate to be dated 72 hours before departure. For some areas like Bali, Indonesia, this is reduced to 48 hours before departure! Thus, as always, things are subject to change with the COVID-19 situation in a constant state of flux, and therefore it is prudent to check with the relevant health and immigration authorities one week before departure on the processes that apply for your FDW's return to their country of origin. 

After Successful Departure

7. After the FDW has exited Malaysia successfully, inform the Manpower Department (JTK) of the successful exit. 

That was simple we know, and please be aware that procedures can be updated by Immigration from time to time. Always do the due diligence to check the Immigration website and it is really is best to google/email/telephone the relevant Immigration branch office to confirm details before you make your way there.  Please be informed as well that this Note on COVID-19, MCO and Malaysian Immigration Checkout Memos for Domestic Helpers (FDW), does not amount to legal advice. If you require professional assistance, do proceed to appoint an immigration lawyer to assist you. You can find immigration lawyers from the Malaysian Bar Council legal directory online. 

We will write another note about those FDWs and foreign work-staff who have overstayed their visa validity/passport expiry, in due course.

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