Where a lender takes a mortgage over the home of an elderly person who acts through an attorney, and the borrower is not intellectually incapacitated, independent legal advice must be given to the borrower personally — a statutory declaration by the attorney that only the attorney received advice is insufficient. A lender's failure to comply with its own lending guidelines is a significant factor in determining whether a contract is unjust under the Contracts Review Act 1980, particularly where the lender is engaged in 'asset lending' over the home of an elderly person for the primary benefit of a relative. The Contracts Review Act should generally be considered before equitable unconscionability where both grounds are available.
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