Updates

THE NEXT ROYAL COMMISSION WAVE – AGED CARE QUALITY AND SAFETY

On 16 September 2018, Prime Minister Scott Morrison announced the Government’s decision to ask the Governor General to establish a Royal Commission to investigate the quality of care provided in residential and home aged care to senior Australians and to young Australians with disabilities living in residential aged care settings.

Since the announcement was made, some shocking facts have been revealed in relation to the quality of care provided in some of our aged care facilities:

  • Dangerous antipsychotic medicine being overprescribed to elderly residents which can lead to premature death and damaging side effects;
  • Residents not being fed or showered daily due to understaffing;
  • The restricted usage of incontinence pads; and
  • Physical and emotional abuse being administered by some carers to these vulnerable patients.

This caused me to begin thinking about what I would want for my own care in such circumstances, should the need arise.

We have an ageing population and Australians are living longer.  That being the case, it is important to consider what it is that we would want not only for ourselves, but for our partners, our parents, our children should there be a requirement for assisted care at some point in time.

At iWills Legal, we are observing an increasing trend to stipulate in the relevant Enduring Power of Guardianship or Enduring Power of Attorney for personal matters documents, a requirement that that the donor of such power never be placed into an aged care facility, but rather, that their funds be utilised at that time for the purpose of improving their home in order that they can remain living there and, further, to enable the payment of carers, nurses and/or doctors to provide any relevant care within the home.

Depending on what the outcome of this Royal Commission may be, we will probably see more and more people take up this approach.

THE RISING CELEBRITY TREND – DEATH WITH NO WILL

Aretha Franklin, the queen of soul, died without a Will on 16 August this year, survived by four adult sons who were to benefit from her estate on intestacy.  However, an on and off again partner of Aretha’s is now seeking a slice of her estate!

Similarly, another legendary singer Prince, who died in April 2016, leaving an estate worth about $200 million but no Will.  Although, under the relevant intestacy laws of Minnesota, a Court declared that his six siblings were the entitled beneficiaries to his estate given that he was not survived by a partner or children, several people have since made a claim on his estate, including individuals purporting to be his earlier unknown wife, sibling, child and distant relative.

Unfortunately, leaving no Will or an invalid Will can often lead to a will dispute (sometimes referred to as a will contest) which stalls the distribution of the estate and, further, results in the diminution of the estate because of the incurrence of legal fees.

Each state and territory in Australia have different rules in relation to who can contest or bring a claim for further provision from the estate.

For example, in Victoria, to contest an estate (whether there is a valid Will or not), you must be an eligible applicant and be able to demonstrate that you have been left without proper provision by the deceased for your maintenance and support.  The class of eligible applicants are as follows:

  • Spouse at the time of death.
  • A Domestic Partner who may be in a “registered” or an “unregistered” relationship with the deceased as at the date of death.
  • Former Spouse or Domestic Partner as at the date of death who was able to take proceedings against the deceased under the Family Law Actand who did not take such proceedings and was prevented by the death of the deceased from taking them, or, who did take proceedings and could not finalise them because of the death of the deceased;
  • Carers, but only if they are in a “registered caring relationship” with the deceased as at the date of death as defined under the Family Law Act 1975and that the relationship was not for a “fee or reward”
  • Children who are:
    • Under 18 years of age; or
    • A full-time student aged between 18 years and 25 years; or
    • Have a disability (as defined in Section 90 of the Administration and Probate Act 1958);
    • A step-child, or adopted child of the deceased, subject to the categories listed above. As of 10 May 2017, children who have been brought into a de facto relationship are now deemed to be “stepchildren” of that relationship for the purposes of identification as an “Eligible Person”.
    • Adults but only if they can demonstrate the degree to which he or she is not capable by his or her own reasonable means of adequately providing for his or her own proper maintenance and support;
    • An “assumed child”. This is where the child was treated by the deceased as a natural child.
  • Grandchildren (including step-grandchildren and adopted grandchildren).
  • Member of the household of the deceased who, at the date of the deceased’s death:
    • Was a member of the household; or
    • Had been in the past but, had it not been for the death of the deceased, would have likely, in the near future, again become a member of the household.

There are ways in which such will dispute claims can be minimised with proper legal advice at the time of preparing your Wills.

If you wish to discuss how you can prepare your estate plan in a way that minimises the incidence of any will dispute, or alternatively, you are seeking advice as to whether you are an eligible applicant for the purposes of contesting a deceased person’s estate, please contact us as we would be happy to assist.

BREAKING NEWS: QUEENSLAND COURT RULES THAT FINANCIAL ATTORNEY CAN SIGN A SUPERANNUATION BINDING DEATH BENEFIT NOMINATION ON BEHALF OF INCAPACITATED MEMBER

On 24 August 2018, the Queensland Supreme Court in the case of Re Narumon Pty Ltd [2018] QSC 185 found that the signing of a new binding death benefit nomination (which served to refresh a lapsing binding death benefit nomination which had been previously made by the member), by the incapacitated member’s financial attorneys, was valid.

The judgment in this case, however, was heavily reliant on the facts of the case which confirmed/verified the following:

  • The Self-Managed Superannuation Fund trust deed expressly authorised the financial attorneys of a member to execute a binding death benefit nomination on the member’s behalf;
  • There were no prohibitions in the Qld Financial Power of Attorney and, further, there are no prohibitions contained in the Powers of Attorney Act 1988 (Queensland), which would prevent an attorney for financial matters from signing or confirming a binding death benefit nomination on behalf of a member; and
  • The signing of the binding death benefit nomination by the financial attorneys, that served to confirm the previous nomination made by the member, did not constitute a conflict transaction.

It remains my view and the view of many professionals in the field, that if:

  • No previous death benefit nomination had ever been made by the member; and/or
  • A fresh death benefit nomination had been executed by the attorneys which served to completely change the identity of the beneficiaries which had been previously nominated by the member; and/or
  • The signing of the binding death benefit nomination by the financial attorneys would have resulted in a conflict transaction –

The death benefit nomination signed by the financial attorneys, on behalf of the member, would not have been upheld by the Court.

The lesson learnt:

Take care in the drafting or variation of:

  • Superannuation Death Benefit Nominations;
  • Self-Managed Superannuation Fund trust deeds; and
  • Enduring Powers of Attorney (for financial matters).

THE FACEBOOK REVOLUTION – IMPLICATIONS ON DEATH AND INCAPACITY

A German Federal Court has recently granted the parents of a deceased 15 year-old girl, the right to access their deceased daughter’s Facebook account.

So where does this leave us in relation to deciding who can inherit and deal with our digital assets, such as our Facebook accounts, on our death?

Facebook is a commonly used social media platform with approximately 2.3 billion users around the world.  It is estimated that 50 million Facebook users have died since its inception and that at least three million Facebook users die every year.

There are many people who share their entire lives on social media platforms, such as Facebook.  Not only are there sentimental photographs stored, but there are often very personal details shared.  It is commonly a timeline of a person’s life.  It is therefore an individual’s human right to decide who has the power to control such digital asset, either on their death or in the event of their incapacity.

To this end, Facebook enables an authorised person to either delete or memoralise a deceased person’s account.  Even in respect of these two options, the Facebook user, whilst capable and living, has the right to designate the option they would prefer (i.e. to have their account closed down on their death and not memoralised).

In order to close down a person’s account due to mental incapacity or death, Facebook requires proof of death/incapacity and one or more of the following relevant documents:

  • Power of Attorney;
  • Last Will;
  • Estate letter;
  • Birth Certificate

In the absence of any proper direction or appointment under a deceased person’s Will (or Power of Attorney) as to who is intended to own and/or control a person’s Facebook account on his or her death or incapacity, Facebook would ordinarily grant this right to the deceased/incapacitated person’s immediate family member, in the absence of any Court order to the contrary.  To further complicate matters, however, Facebook users are able to add a ‘Legacy Contact’ to their account, who would serve to control/manage their account in the event it was memoralised (whether due to incapacity or death).

In this regard, it is quite concerning to think about what could happen in the case of a separated couple who were not yet divorced at the time of death, where, either by classification as an immediate family member, the notation as a legacy contact to their spouse’s Facebook Account or by appointment as an executor under a Will or an attorney under a Power of Attorney that had not yet been changed since the event of separation, the ex-partner could gain control over a key digital asset such as Facebook!

If you have a Facebook account, or any other key digital asset, get your estate planning in order to avoid such chaos!

IMPACT OF THE CHANGING FAMILY STRUCTURE ON ESTATE PLANNING

Robin Williams’ first wife, Valerie Velardi, who shared a son with him, has recently made a statement to the media that she knew and allowed his infidelity during the time of their marriage.  This got me thinking further about the forever evolving nature of the ‘family unit’.

When it comes to estate planning in today’s society, there is an obligation to consider your moral obligations to provide adequate and proper maintenance and support for those you leave behind, including a mistress who could potentially claim or establish that she was your de facto or domestic partner at the time of your death.  People are most shocked when I explain to them that you are also legally in a de facto or domestic relationship with another person if you have a child together under the age of 18 years, even if such child results from a single encounter.

On the 1st of November last year, the intestacy laws (i.e. where a person dies without a Will or a valid Will) in Victoria were completely overhauled.  Amongst other significant changes, the distribution of an intestate estate where a person dies with multiple partners (being a spouse, domestic partner or a registered caring partner at the time of death), was further explored to the extent that:

  • If a person leaves multiple partners but no children or multiple partners but a child or children to each of those partners, the deceased’s estate would pass entirely to the partners either in accordance with a distribution agreement negotiated between the partners, a distribution order made by the Court, or by default, equally between the partners, with no part of the estate passing directly to the child or children.
  • If, by contrast, a person leaves multiple partners but a child or children not of that partner or those partners then:
    • The partner or partners receive:
      • The personal chattels (such as jewellery, furniture) of the deceased (equally or by way of a distribution agreement between the partners or a court order);
      • The statutory legacy (currently $451,909) equally; and
      • Half of the balance of the estate equally.
    • The child or children receive:
      • The remaining half of the balance of the estate pursuant to a distribution agreement, a distribution order made by the Court, or by default, equally.

Of course, there is still scope for an eligible person to make a claim on the Estate seeking that further provision be made for his or her proper maintenance and support and therefore upset the formulaic provision referred to above.

Proper estate planning will mitigate against the potential fall out for those loved ones you leave behind.

MEDICAL POWERS OF ATTORNEY IN VICTORIA HAVE CHANGED – ARE YOU READY?

 

As of 12 March 2018, the rules relating to medical powers of attorney in Victoria will be overhauled.

The old Enduring Power of Attorney (Medical Treatment) form will now be replaced by the Appointment of Medical Treatment Decision Maker.

Although the old Enduring Power of Attorney (Medical Treatment) (if signed prior to 12 March 2018) will remain in force, it is worth reviewing your present arrangements in relation to your medical treatment planning given that the new changes will allow you to:

  1. Place limitations or conditions on the exercise of any medical treatment decisions by your medical treatment decision maker;
  1. Appoint a support person to assist you to make, communicate and give effect to your medical treatment decisions;
  1. Even in the absence of an Appointment of Medical Treatment Decision Maker, you will be able to prepare an instructional Advanced Health Care Directive which sets out binding instructions to a health practitioner and/or medical treatment decision maker in relation to the consent or refusal of particular future medical treatment on your behalf;
  1. Prepare a values Advanced Health Care Directive which serves as a guide to your medical treatment decision maker or the government guardian in relation to your values and preferences for your medical treatment.

In the absence of an Advanced Health Care Directive or Appointment of Medical Treatment Decision Maker, if the medical procedure is routine, the health practitioner may make such decision without requiring anyone’s consent, however, if the medical procedure is significant, the health practitioner will require the consent of the Public Advocate of Victoria, the government guardian.

If you wish to discuss your present medical treatment arrangements in light of the new legislative changes, please do not hesitate to contact us.

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