July 13

Binding Financial Agreement

A Binding Financial Agreement is shortly called as BFA. As per the Family Law Act 1975 (Cth) the agreement can be entered at any time of the relationship before, during and after. The agreement deals with all financial and property issues between the parties, including the claim for spousal maintenance. The agreement must be drafted according to the legislation and the parties required to seek the independent legal advice for executing the valid agreement. The binding financial agreement is reached between the parties without the interference of the Court as such it is important to remember that the agreement must be carefully and accurately drafted, and parties should enter into an agreement with full disclosure of all relevant circumstances, avoid duress, undue influence and unconscionability.

For further information, please contact Solicitor Shelvi Shanmugam on 9557 2915 or by email ts@kellyandchapman.com.au

June 25

COVID-19 early access to Superannuation and its impact on Family Law Property Settlements

Pursuant to the information on the Australia Taxation Office’s website, individuals who are financially affected by COVID-19 can access some of their superannuation early. Those individuals will not need to pay tax on any amount released to them and will not need to disclose it when lodging their tax returns. Eligible parties can apply to access up to $10,000 of their superannuation until 30 June 2020 and a further $10,000 from 1 July 2020 until 24 September 2020. It is important to understand how any early access to superannuation affects the matrimonial pool. Given that superannuation is part of the marital assets, regardless of whose name the superannuation is held, the parties (a spouse or a defacto partner) are entitled to that superannuation as part of the matrimonial property split. If one party accessed their superannuation early, the other party can argue that a partial property settlement has been distributed to the party who accessed their superannuation early for their sole benefit.

 

For further information, please contact Shelvi Shanmugam on 9557 2915 or by email ts@kellyandchapman.com.au

March 7

New Medical Powers of Attorney from 12 March 2018

The Medical Treatment Planning and Decisions Act 2016 provides a framework for making decisions about medical treatment when people do not have capacity to make their own decisions.

The Act is part of a broader shift towards empowering and supporting people to make their own treatment decisions.

The Act does not authorise physician assisted dying and this is a separate issue to advance care planning.

All medical powers of attorney validly executed before 12 March 2018 (under the Medical Treatment Act 1988 ) continue to be valid and applicable and they do not need to be redone .

The existing Enduring Powers of Attorney Financial and Personal are not affected by these changes.

Decision-making capacity

An adult is presumed to have decision-making capacity. To have decision-making capacity a person must be able to do all of the following –

  • understand the information relevant to the decision and the effect of the decision
  • retain that information to the extent necessary to make the decision
  • use or weigh that information as part of the process of making the decision
  • communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gestures or other means.

Advance care directive

A person may only create an advance care directive if they have decision-making capacity in relation to each statement in their advance care directive.

An advance care directive must be witnessed by two adults, one of whom is a medical practitioner.

There are two forms of statement a person may include in their advance care directive:

  • an instructional directive
  • a values directive.

Instructional directive

In an instructional directive a person may either consent to or refuse a particular medical treatment.

If the person subsequently does not have the capacity to make a decision about that treatment, the instructional directive will apply as though the person has consented to or refused the treatment.

Any statement not explicitly identified as an instructional directive, through the use of these words, will be considered a values directive.

Values directive

In a values directive a person may make more general statements about their preferences and values and what matters to them.

If the person has not included a relevant instructional directive, then the health practitioner will need to obtain consent from a medical treatment decision maker to provide treatment.

The medical treatment decision maker must consider the values directive.

Medical treatment decision makers

If medical treatment is clinically indicated and a person does not have decision-making capacity, a health practitioner must obtain consent through an instructional directive, or if there is none, obtain consent from a medical treatment decision maker.

An adult may appoint a medical treatment decision maker when they have decision-making capacity to do so.

If an adult does not have decision-making capacity, the medical treatment decision maker will be the first person who is willing and available in the list below (NB: there can only be one medical treatment decision maker at a time):

  • an appointed medical treatment decision maker
  • a guardian appointed by the Victorian Civil and Administrative Tribunal (VCAT)
  • the first of the following with a close and continuing relationship with the person:
    • the spouse or domestic partner
    • the primary carer of the person
    • the oldest adult child of the person
    • the oldest parent of the person
    • the oldest adult sibling of the person.

If a child does not have decision-making capacity, their medical treatment decision maker will be a parent, guardian or other person with parental responsibility.

Making medical treatment decisions

If medical treatment is required in an emergency to prevent death, serious damage or significant pain or distress, it may be provided without consent to a person lacking decision-making capacity. But not in contravention of an instructional directive of which the health practitioner is already aware.

When providing medical treatment to a person without decision-making capacity (other than in an emergency), a health practitioner must make reasonable efforts in the circumstances to locate an advance care directive and a medical treatment decision maker. This requirement will vary depending on the urgency of the treatment and what is known about the person.

If there is a relevant instructional directive, a health practitioner must comply with it just as if the person has consented to, or refused, the treatment. A health practitioner does not have to provide a treatment if it is not clinically indicated just because a person has consented to that treatment in advance. If there is no relevant instructional directive, the decision must be made by the medical treatment decision maker.

The Act requires a medical treatment decision maker to make the decision they reasonably believe the person would have made. The Act includes a process for determining the decision the person would have made. It says that the medical treatment decision maker must:

  • first consider any valid and relevant values directive
  • next consider any other relevant preferences that the person has expressed and the circumstances in which the preferences were expressed
  • if the medical treatment decision maker is unable to identify any relevant preferences, they must consider the person’s values, whether these are expressed by way of a values directive or otherwise, or inferred from the person’s life.

In making a decision, the medical treatment decision maker must also consider the likely effects and consequences of the medical treatment, including:

  • its likely effectiveness
  • whether these are consistent with the person’s preferences and values.

The medical treatment decision maker must also consider alternative treatment options, including not providing treatment.

If the person’s preferences and values cannot be ascertained, the medical treatment decision maker must make a decision that promotes the person’s personal and social well-being, having regard to the need to respect the person’s individuality.

No medical treatment decision maker

If there is not an instructional directive or a medical treatment decision maker, a health practitioner must obtain consent from the Public Advocate if the proposed medical treatment is significant.

If the medical treatment is routine, the health practitioner may proceed without consent, but must note this on the person’s clinical record.

February 6

Do you have a will? Do you know where it is?

Many Australians are risking their wealth, considering somewhere between 25 and 40 per cent of people die intestate, without a Will in place.

Part of that statistic is influenced also by a loss of documents. So not only is it important to have proper, strong, appropriate documents that fit your plan in place … but you should also know where they are and ensure others know where they are, especially your executor(s). There is no public registry of the Wills nor can you Google it.

Those estate planning documents should also include things like enduring powers of attorney – financial, personal (used to be called guardianship) and medical – documents relating to superannuation and the family trust, as well as a health directive which is the statement laying out your wishes to the next of kin and the health professionals in regards to some terminal illnesses and /or conditions you may be suffering from now or in the future.

The importance of knowing where the documents are cannot be overstated. For example, family discretionary trusts are the single most utilised investment vehicle in Australia today for a multiple of reasons, not the least of which include asset preservation, that is, against claims and also for tax flexibility.

However, often people say that they lost the trust deed. That’s a disaster. So, it is extremely important to know where they are , are the documents in place, do they accurately express that which was intended to be created?Again, as with Wills, there is no public registry of these trust deeds . If you lose them you cannot recover/replace them unlike certificates of title, for example, which can be replaced by a new title issued by Land Titles Office

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