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Will my illness or disability lead to an adjustment in Financial Orders?

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Often during the course of property settlements, it is asserted by one of the parties that they ‘deserve’ a larger portion of the asset pool due to reliance on certain factors. The factors relied upon are found in the Family Law Act 1975 (Cth), in particular Section 75(2) for married couples, and Section 90SF(3) for de-facto couples. Application of these provisions is seen as the third step (out of four) that Australian Courts typically undertake in making Financial Orders.

The four steps undertaken by Courts are generally set out as follows:

  • Identify and value the assets, liabilities and resources of the parties;
  • Consider the contributions of the parties made throughout the relationship;
  • Consider the future needs of each party; and
  • Determine whether the proposed settlement is just and equitable.

Essentially, at the third step the Court evaluates the future needs of the parties taking into account their individual circumstances. The aforementioned provisions set out 19 factors that may be taken into account by the Court in evaluating the extent of each parties’ future needs. The relevant subsections relating to adjustments for disability and illness are the following:

  • The age and state of health of each of the parties (s 75(2)(a)); and
  • The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment (s75(2)(b)).

Unfortunately, many Australians face challenges in their everyday lives associated with ongoing disabilities or illnesses. At Carter Dickens Lawyers we seek to assist those who may be vulnerable in financial settlements, and ensure they are aware of their rights and the impact their disability may have upon the expected distribution percentage they would receive from a Court ordered financial settlement.

 

Am I likely to receive an adjustment in my favour due to my disability?

The assessment of ‘future needs’ remains a discretionary activity undertaken by the Court. Therefore, it is difficult to say with confidence that an ongoing disability or illness will guarantee a percentage adjustment in your favour by the Courts.

However, there are precedent cases which appear to suggest a 5-15% adjustment may be made where one party suffers from disabilities and this impacts their ability to achieve gainful employment in the future. In particular, the case of Dritsas v Wilson [2008] FMCAfam 44 saw a section 75(2) adjustment in the wife’s favour of 10 per cent where the potential of future employment was essentially non-existent due to the extent of the wife’s disabilities and her age.

Although there appears to be precedent for making these adjustments, and the legislation specifically makes reference to age, health and the ability to gain meaningful work – each case is determined on an individual basis. We therefore recommend you seek legal advice on this matter if you are either going through a financial separation or are planning on seeking financial orders.

 

What if both myself and my ex suffer from disabilities/illnesses?

Unlike the circumstances aforementioned, in some cases both of the parties to a financial separation suffer from illnesses or disabilities respectively. This situation creates greater difficulties for Courts in evaluating the ‘future needs’ of the parties as both may have their own valid claims.

Again, this situation would see the courts exercise their discretion, and all factors would be evaluated prior to any Order is made. However, Nathan & Nathan [2007] FamCA 589 was an example where the Family Court of Australia deemed it equitable to make no adjustment. In this case, Justice Kay at [23] stated no adjustment would be made out for the following reasons:

“A global view of this case shows two people with very limited earning capacity, two people with significant medical disabilities.  They are both aged 46.  Neither of them has a very secure economic future to look forward to.  The husband appears able to live on his wits.  The wife has secure employment at least with some modest superannuation available to her.  It does not seem to me to be a case in which any s 75(2) adjustment is appropriate.”

Essentially, where in the Courts discretion the parties equally suffer from limited earning capacities and significant medical disabilities/illnesses, it may be just and equitable to make no adjustment for future needs, instead opting for an equal split of the asset pool.

From the situations discussed, it is clear that the Court is empathetic to the plight faced by those with illnesses and disabilities; however, the extent to which this will impact Financial Orders depends on scope of the facts at hand. If you believe that the section 75(2) factors discussed in this article may apply to your circumstances, please contact Carter Dickens Lawyers on (08) 9408 5212 for a free 15-minute consultation with one of our lawyers.

Carter Dickens Lawyers specialise in Family Law and Financial Disputes. We pride ourselves on our ability to provide legal assistance and advice, including on niche areas of law, such as the impact of disabilities on expected percentage distributions from Financial Orders. We will ensure that you are fully informed of any rights and risks associated with your divorce or financial matter.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Do you require a ‘Sharia-compliant’ Australian Will?

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Australian Muslims are often obliged to ensure that they have a legally valid Will which conforms to both Australian Law and Islamic guidelines. This is particularly difficult to achieve where key understandings of the cultural, religious and legal needs of Islam are misunderstood by the practitioner tasked with drafting their client’s Will.

Islamic law is not recognised in Australia as we are deemed to be a ‘secular’ nation. Your will, therefore, needs to comply with Australian law for it to be legally enforceable, whilst incorporating the required clauses to ensure that your assets are distributed in accordance with the Islamic rules contained in the Quran.

At Carter Dickens Lawyers, we seek to bridge this gap and have ensured we have services tailored towards these specific needs of our clients. Our ‘Sharia-compliant’, or ‘Islamic Wills’, offer a service which provides legally valid Australian Wills custom-made to satisfy the strict Islamic guidelines following a person’s passing. In particular, we understand the varying requirements with regards to burial arrangements, the distribution of the estate, payment of obligations and the powers of trustees.

 

Burial Arrangements

Burial Rites

By executing a valid Islamic Will, a Muslim can give directions for the executor to make proper preparations for the washing and shrouding of the body. In addition, directions can be made for the funeral procession, funeral prayers and the burial. This allows a Muslim to state their intention to have an Islamic funeral.

At Carter Dickens Lawyers, we further ensure a proper Islamic burial via making provision for the counsel of a pre-selected Imam for any questions that arise.

Autopsy

As per the Quran, your valid Islamic Wills may contain directions for the prevention of voluntary autopsies, unless required by Australian Law. In addition, your Will can contain provisions for either allowing or preventing removal and donation of organs and other internal body parts.

 Obligations & Distribution of Estate

 Under Islamic law, your estate will be distributed as follows:

  • First, all funeral expenses must be paid, followed by the payment of all debts (secured and unsecured) owing.
  • The remainder of your estate, after deducting liabilities/debt is referred to as your net estate.
  • From your net estate, Islamic law permits you to distribute up to one-third as a legacy to any person, provided they are not heirs to the remainder of your estate. A legacy can be paid to a Muslim or non-Muslim and to any organisation or charity of your choice.
  • The remainder of your net estate, after deducting any legacies, must be distributed to your heirs in accordance with Islamic law. The section below outlines the expected shares.

 

Expected Distribution Percentages

Essentially the beneficiaries of your estate are your spouse (if you have one), your parents and children. Other immediate family members may become beneficiaries if your parents or children have not survived you. The percentage distributions are allocated as per the Quran, and varies depending on survivorship of the beneficial parties. Essentially, the basic inheritance shares are to be distributed according to the following table:

Relative Share
Each surviving parent 1/6
Surviving husband (where children exist) 1/4
Surviving husband (no children) 1/2
Surviving wife (where children exist) 1/8
Surviving wife (no children) 1/4
Surviving son (where surviving sister(s) exist) Son receives twice the share of a daughter
Surviving son (no sister) Son(s) receive remainder of estate
Surviving daughter (where surviving brother(s) exist) Daughter receives half the share of a son
Surviving daughter (no brother) Only one daughter = 1/2 of the estate

Two or more daughters = they share 2/3 of the estate

It is due to these particular Islamic requirements and their interaction with jurisdictional legal issues that legal advice is recommended prior to drafting and executing a ‘Sharia-compliant’ Australian Will.

Carter Dickens Lawyers excel at providing legal assistance and advice regarding the specific circumstances surrounding these Wills. We will ensure that you are made aware of any risks, and will provide a fully compliant Will to ease the potential legal strain associated with your passing.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Pet Custody

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The issue of ‘Pet Custody’ has become a prominent concern in the Australian legal landscape. Despite often treating our pets as members of the family, Australian Family Law continues to view our pets as a form of ‘personal property’. As such, pets are treated like other items in the asset pool, and may be divided between the parties.

 

The ‘Value’ of Pets

Unfortunately, the value we attribute to our pets does not often reflect the market value Courts will allocate to them. Unless the pet is a purebred or pedigree show dog, there is likely only a nominal value attributed to the pet in comparison to other relationship assets.

Should a significant value be attributed to the pet for particular reasons, it may be necessary to provide evidence to the Family Court verifying this amount.

 

How is Pet Custody decided?

Courts are generally reluctant to get involved in lengthy arguments between parties regarding the custody of their pets. The preferred resolution is often for parties to settle between themselves a custody plan for the retention of their pets. Should Family Court orders be required, the resolution of this matter is often conducted in a similar vein to that of other personal property allocations.

The following are a range of discretionary factors the Family Court may take into account in determining which party retains ownership and care of the family pet:

  • Which parties’ name the pet is registered in.
  • Which party undertakes the majority of the responsibilities involved in caring for the pet (day to day care)
  • Which party has appropriate housing for the pet and who can satisfy the pets future needs.
  • The ability to pay for stabling or training needs, particularly if the pet is a horse or other farm animal (economic needs).

 

Can you have Shared Custody?

Despite these factors often resulting in sole custody by a single party, it is well within the courts discretion to make orders to the effect of a ‘shared custody’ plan. Such orders are unlikely to be made, unless the orders are consented to by both parties.

Instances where the court is likely to make this type of order is where it directly reflects the ‘best interests’ of children. Should there be children of the relationship in addition to a family pet, it may be deemed by the Family Court to be in the children’s best interests for the pet to follow them between their parents’ homes. This may give the children a sense of familiarity and stability following the breakdown of their parent’s relationship. Additionally, the pet may provide a therapeutic or medical benefit which requires shared custody.

Carter Dickens Lawyers excel at providing legal assistance in all areas of Family Law. We will ensure that you are made aware of all options moving forward and may aid you in the drafting of orders pertaining to the ownership, possession and shared care of your pets.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

What are my Legal Rights to a Parentage Test?

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We are occasionally asked by our family law clients whether it is possible to obtain a parentage test where the paternity of a child is “in issue” or “in doubt”. Despite potentially valid reasoning by a party to seek such a test, the Courts are often reluctant to make orders that a test be conducted.

 At Carter Dickens Lawyers we will aim to assist you in providing to the Court the clear evidence which meet the requirements to be granted a DNA parentage order. This may in turn impact past, ongoing and future Child Support payments, as well as a range of other factors related to parenting a child.

Presumptions of Parentage

Given the inability to DNA test all alleged parents of children, the Court, through the relevant provisions of the Family Law Act 1975 (CTH) make certain presumptions. For example, a person is presumed to be the child’s biological parent if:

  • they are named as the parent on the birth certificate or adoption certificate
  • they sign a statutory declaration (a legal document) saying they are the father/parent
  • the child was born during the marriage
  • the child was born within 20 to 44 weeks of when the mother and father lived together
  • the court makes a declaration (finding) that a person is a child’s father and/or that a person is liable to pay child support for a child.

 

Rebutting the Presumptions

Presumptions of parentage used to play an important role prior to DNA testing being used as evidence. Now, with DNA testing, the role of the presumptions is simply to put onus on the person who wants to rebut the presumption to gather such evidence.

It is possible for the Court to require a parentage testing procedure to be carried out for the purpose of obtaining information to assist in determining the parentage of the child, and to seek to vary the presumption of parentage. The Court, however, requires there must be enough evidence which places the paternity of the child in doubt, before it can embark upon the process of subjecting the child to procedures for paternity testing.

The Court will only make such an order if you are able to demonstrate via evidence before the Court that you have an honest, bona fide and reasonable doubt that the child is your own (In the Marriage of Lee and Tse (2005) 33 Fam LR 167 at [29]-[34], [40]-[49).

 

What Happens if a Parent refuses the Parentage Test?

A court may draw such inferences as appear just in the circumstances if an adult person contravenes a parentage testing order or an associated order, or if a guardian of a child the subject of the application refuses to consent to the procedure.

In G v H (1994) 181 CLR 387, Brennan and McHugh JJ accepted the following definition of the word “inference”:

‘An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies.’

In G v H, G (the man alleged to be the father of the child) refused to undergo parentage testing. The High Court considered the inference that could be drawn from this refusal. Their Honours, Justices Deane, Dawson and Gaudron held the following:

“So far as G’s state of mind is concerned, it may be inferred that he has chosen to take the risk of being held to be the father of H’s child and liable for his maintenance and support rather than submit to a test which will effectively disclose whether or not he is in fact the father … And if, as here, the evidence establishes that a particular person is the most likely person to be the father and that person has chosen to risk a finding that he is the father rather than submit to a parentage test, there is no injustice involved if such a finding is ultimately made.”

Essentially, it was concluded that an “inference may be drawn contrary to the interests of a party who, although having it within his or her power to provide or give evidence on some issue, declines to do so.”

Parentage is important because only parents have to pay Child Support. Parentage may also be an issue in Family Court matters when there is a dispute about who a child lives or spends time with. We therefore recommend you seek legal advice if you have any issues related to a topic raised in this article.

We understand the stress and time constraints that are often associated with these sensitive family issues. With this in mind, Carter Dickens Lawyers aims to both advise and make you fully aware of your rights, obligations and risks pursuant to Parentage Testing.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific case in question.

Social Media as “Evidence” in the Family Court

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The use of evidence obtained through various social media outlets has become a feature in many Family Court proceedings around Australia. Evidence of private conversations, photos, videos, shares and other social media activity we almost all engage in has found its way into the realm of admissible evidence.

Unfortunately, most people do not understand the potential repercussions of placing their life, private affairs and images in the public arena. We will explore the impact of social media as “evidence” and provide insight into the admissibility of this type of evidence in Western Australia.

 

Admissible Evidence in Family Law

Family law proceedings allow parties the opportunity to present “documents” as evidence to the judicial officer through tendering it to the Court. Judicial officers may then decide how to weigh evidence that has been admitted; whether to give any weight to normally inadmissible material; and whether to direct the parties to provide particular evidence.

Under Section 2B of the Acts Interpretation Act 1901 (Cth), a “document” is defined as any “record of information”, including (amongst other examples):

  1. anything on which there is writing; and
  2. anything from which sounds, images or writings can be reproduced with or without the aid of anything else.

Given this interpretation, content from social media such as Facebook, Instagram, Snapchat, LinkedIn, Twitter and WhatsApp could be regarded to be within this definition.

Note that the Evidence Act 1906 (WA) and the Evidence Act 1995 (Cth) each set out their own ways that social media can be used as evidence. Beyond merely satisfying the definition of an admissible “document”, there are further limitations to the potential admissibility of evidence. They are:

  1. Relevance
  2. Judicial Discretion
  3. Varying weight given to the evidence

 

Relevance

The starting point for any evidence is that it must be RELEVANT. That is, the social media content must be considered by the Court to be something that relates to the existence of a fact in your case. Broadly, relevant evidence will relate to the issue in dispute, support your claim and be able to advance your claim. If any of these fails, it is unlikely to be considered sufficiently relevant.

 

Judicial Discretion

The Family Court has a broad DISCRETION, pursuant to Section 69ZT(1) of the Family Law Act 1975 (Cth), to exclude the provision of ordinary rules of evidence to child-related proceedings. This discretion essentially allows courts to render social media evidence, which would otherwise likely be deemed hearsay or opinion evidence, to be admissible.

 

Weight of Evidence

Despite being admitted, social media evidence may be attributed the WEIGHT a judicial officer sees fit pursuant to 69ZT(2) of the Family Law Act 1975 (Cth). Recent case authority has shown that it is likely that the Family Court will be cautious when attributing weight to social media content given the nature and reliability of this type of evidence.

 

Although social media may be considered admissible evidence, the ability of a party to admit this evidence may be limited by the varying rules of evidence and judicial discretion. Carter Dickens Lawyers would advise parties to protect themselves by limiting social media which may be relevant to their proceedings.

In addition, parties should note that it is an offence to publish any images or posts which identify a party or child to family law proceedings (Family Law Act 1997 (WA) s 243; Family Law Act 1975 (Cth) s 121).

 If you have a Family Law matter and social media activity is of concern to you, please contact us on 08 9408 5212 for a free 15-minute phone consultation.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific case in question.

What is ‘Parental Responsibility’?

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The concept of “parental responsibility” is common to family law parenting disputes, however, there is often confusion surrounding its meaning. The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) introduced the concept of “parental responsibility”.

The Family Law Act 1975 (Cth) (‘FLA’) section 61B defines “parental responsibility” as:

‘In relation to a child, all the duties, power, responsibilities and authority which, by law, parents have in relation to children.’

Whether the parents are together or separating, it is their responsibility to make arrangements that are in the best interests of the child. Each parent has parental responsibility for their children until they are 18 years of age. This Parental responsibility is not affected by changes in the parents’ relationship; for example, if they separate or remarry.

 

How does the Family Court make decisions about parental responsibility?

Under the relevant law, each parent has ‘parental responsibility’ for their children, until the children become adults at 18 years old. Parental responsibility includes making the following major decisions for the children:

  1. Parental responsibility means all of the duties, powers, responsibilities and authority that parents have in relation to their child. It is not the same as equal parenting time or shared care.
  2. Equal shared parental responsibility means both parents share major long-term decisions on issues such as:
  • medical matters
  • religious matters
  • cultural matters
  • education
  • living arrangements.

Day-to-day decisions, such as what the children eat or wear, are not included in these responsibilities.

Note, it is possible for one parent to have sole parental responsibility, for multiple persons to share parental responsibility of a child, for a person other than a parent of the child to have parental responsibility for that child, and for parental responsibility to be shared other than equally (e.g. different persons may have responsibility for specific aspects of the child’s upbringing).

Equal Shared Parental Responsibility

Each of the parents of a child under the age of 18 years has parental responsibility for that child, notwithstanding any changes in the nature of the relationships of the child’s parents. Where either parent obtains sole parental responsibility (for example, upon the death of the other parent), there is no presumption that any particular parenting orders will be made in relation to that parent.

As a starting point, Under section 61DA of the FLA (and section 70A of the Family Court Act 1997 (WA)), when a court makes a parenting order, it must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption was introduced to facilitate the right of children to have the benefit of both parents involved in a meaningful way in their lives to the extent that the involvement remains in the best interests of the child, as well as ensure parents fulfil their obligations and responsibilities to their children.

Parents are obliged to consult each other about major long-term issues and genuinely attempt to reach joint decision. Obligations regarding equal shared parental responsibility may apply to some matters but not all for which parents are to make long-term decisions. In some cases, sole parental responsibility is given to one parent if appropriate in the circumstances.

The presumption is displaced if there are reasonable grounds to believe that either parent, or a person whom the parent lives with, is or has been engaged in either abuse of a child or family violence.

Furthermore, an order for equal share parental responsibility is not automatically determinative of an order being made for a child to spend equal time or substantial and significant time with each parent. Parents who have parental responsibility can also be the subject of orders as to how they communicate with each other (s 64B(2)(d)), or the manner in which any dispute is to be dealt with (s 64B(2)(h)).

 

What Happens if Equal Shared Parental Responsibility is Displaced by the Court?

If the presumption of equal shared parental responsibility is displaced, sole parental responsibility is the alternative to equal shared parental responsibility. This means one parent adopts full parental responsibility for a child and can make long-term decisions for a child solely, without input from the other parent.

Orders for sole parental responsibility are only made if it is in the best interests of the child to do so. However, it must be noted that sole parental responsibility and equal shared parental responsibility are not the only two alternatives. In some cases, a parent may have sole parental responsibility for one specific long-term major issue, with the balance of major long-term decisions having to be made by both parents equally.

 

For more information please see the Family Court of Western Australia’s Parental Responsibility Webpage or contact Carter Dickens Lawyers on (08) 9408 5212 for a free 15-minute phone consultation with one of our Lawyers.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your Legal Matter.

Applying for a Grant of Probate

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What is Probate?

Probate is the process in which a deceased person’s Will is proved and registered by the Supreme Court of Western Australia as being the last valid Will of the deceased person.

A Grant of Probate confirms that the executor named in the deceased person’s Will has the legal right to deal with deceased person’s estate. Banks and other financial institutions, Landgate, and share registries will often require a copy of the grant or to see the original version when dealing with the executor/administrator on the deceased’s person’s property.

The type of Grant required from the Supreme Court depends on the circumstances surrounding the execution of a Will by the deceased. For example, where no valid Will has been left, the process of applying for a Grant is via Letters of Administration, this process becomes more complex than a Grant of Probate, and we therefore recommend contacting Carter Dickens Lawyers to assist you through the process.

 

Common Forms of Grant:

  • Probate – where a person has died leaving a Will that nominates a person as executor the Court may grant Probate to that person.
  • Letters of Administration with the Will Annexed – where a person has died leaving a Will that does not name an executor or where the only executor named in the Will is unable or unwilling to apply for a grant of Probate, the Court may grant Letters of Administration with the Will Annexed to an appropriate person who will usually be a beneficiary of the deceased’s estate.
  • Letters of Administration – where a person has died without leaving a valid will the Court may grant Letters of Administration to an appropriate person who will usually be a beneficiary of the deceased’s estate.

Being awarded one of these types of Grants is representation to the World that the Executor/Administrator of the Estate has the right to deal with the deceased’s Estate.

 

When Will Probate Not Be Required?

There are particular circumstances where an Executor may not require a Grant of Probate from the Supreme Court of Western Australia. These include:

  • The deceased person did not own any assets in Western Australia (in which case Probate may be necessary in the Supreme Court of the relevant State);
  • The deceased owned real estate at the date of death as a joint tenant with another person. In this case the title can be transferred to the surviving party without a grant of probate being required;
  • The deceased’s bank account was jointly held with another person such as a spouse or partner. Such bank accounts will normally be transferred to the surviving party on production of a death certificate to the bank by the surviving party;
  • The deceased’s only other assets were personal possessions and household effects;
  • Shares owned by the deceased have a market value of less than $15,000;
  • The bank accounts of the deceased have a balance of less than $10,000 (the precise balance before a bank requires a Grant varies between individual banks).

 

Documents Required in Simple Application for Grant of Probate

All basic applications for probate require the same five documents (which increases to six if there are any other testamentary instruments). Additional documents may then be required to satisfy the court as to other issues.

The five basic documents (the sixth being any other instrument of a testamentary nature) are:

  1. motion for a grant of probate;
  2. affidavit of applicant for probate;
  3. rule 9B statement of assets and liabilities;
  4. the original will and any codicil;
  5. the original death certificate; and
  6. any other instrument of a testamentary nature.

 

What is the Process to Obtain a Grant of Probate?

The executor named in the deceased person’s Will must make an application to the Supreme Court. An application can be made at any time after fourteen days from the death of the deceased person, but it is necessary for the deceased’s death certificate to be provided in this application.

Once an application for a Grant has been lodged in the Supreme Court, the typical period of processing is four to eight weeks, however, this is dependent on the court’s capacity to hear the matter.

If the court is satisfied with the application, they will issue a Grant of Probate. If the court is not satisfied with the application, it may issue a requisition notice. A requisition notice is simply a notice which advises that there is a defect with the application or that the court requires more information.

At the conclusion of this process, the deceased person’s original Will is retained by the Supreme Court, with a copy of the Will being attached to the Grant of Probate.

 

For More information please see the Supreme Court of Western Australia’s Wills & Probate Webpage or contact Carter Dickens Lawyers on (08) 9408 5212 for a free 15-minute phone consultation with one of our Lawyers.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your Legal Matter.

Advanced Health Directive and Voluntary Assisted Dying

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We provide this information about voluntary euthanasia and how it relates to the law in Western Australia without asserting any moral judgement either for or against the matter.

What is an Advanced Health Directive?

In Western Australia, an Advance Health Directive (AHD) is a device governed by the Guardianship and Administration Act 1990 (WA) to enable a person to provide or withhold consent for certain specific healthcare, medical, surgical or dental treatment or procedures including life-sustaining measures and palliative care.  In some other jurisdictions they are better known as ‘Advance Care Directives’.

An AHD is a written legal document which explains how you wish to be treated in the future should you become incapable of making informed decisions. They are the first port-of-call when a patient lacks capacity to consent to medical treatment. If you have an AHD, this will override any decisions made by your assigned Guardian if you were to lose capacity.

An Advance Health Directive allows a person to:

  • set out values and wishes to guide decisions about their future healthcare and other personal matters; and
  • set out what, if any, particular healthcare they refuse and in what circumstances.

If you are interested in having an AHD drafted to your personal needs, please contact Carter Dickens Lawyers on (08) 9408 5212 to arrange a consultation to discuss securing your future healthcare needs.

 

What is Voluntary Assisted Dying?

Voluntary Assisted Dying (VAD), also known as ‘voluntary euthanasia’, is defined in the Voluntary Assisted Dying Act 2019 (WA) as the “administration of a voluntary assisted dying substance and includes steps reasonably related to that administration.” Essentially, VAD means that eligible adults could ask for medical help to end their life if they have a disease or illness that is so severe it is going to cause suffering and their eventual death. The term ‘voluntary assisted dying’ emphasises the voluntary nature of the choice of the person and their enduring capacity to make this decision.

In December 2019 the Voluntary Assisted Dying Act 2019 (WA) was passed by the Western Australian Parliament.

 

Criteria and Eligibility for the Voluntary Assisted Dying Act 2019 (WA)

In terms of eligibility to access Voluntary Assisted Dying, one must satisfy the following criteria:

  • Aged 18 years or over;
  • Australian citizen or permanent resident who has been ordinarily resident in Western Australia for at least 12 months;
  • They have been diagnosed with at least 1 disease, illness or medical condition that is advanced, progressive and will cause death; and, will, on the balance of probabilities cause death within a period of 6 months (or 12 months for neurodegenerative); and, is causing suffering that cannot be relieved in a manner that the person considers tolerable;
  • They must have decision-making capacity in relation to voluntary assisted dying;
  • The person must be acting voluntarily and without coercion;
  • The person must have an enduring request for access to voluntary assisted dying.

Finally, to access voluntary assisted dying a person must be independently assessed as eligible by two medical practitioners. These medical practitioners must meet certain requirements and have undergone mandatory training. They may also refer the person for additional assessments if required.

During the process the person must make three separate requests for voluntary assisted dying: a first request, a written declaration and a final request. The written declaration must be witnessed by two people (who meet specific requirements as relevant legislation).

 

Relationship between the Voluntary Assisted Dying Act 2019 (WA) and Advanced Health Directives

You cannot make arrangements for VAD through an AHD. The Western Australian Legislature specifically amended the Guardianship and Administration Act 1990 (WA) to ensure AHDs will not have this power.

This was discussed at length in Parliament and they have offered the following reasoning in the Explanatory Memorandum for the Voluntary Assisted Dying Act 2019 (WA) Act:

“… The effect of this clause is to make it clear that voluntary assisted dying cannot be included in an advance health directive as a treatment decision in respect of a person’s future treatment for the purposes of Part 9B of the Guardianship and Administration Act 1990 (WA). Further, this clause also makes it clear that a treatment decision cannot be made under the Guardianship and Administration Act 1990 (WA) in respect of voluntary assisted dying.”

Essentially, despite legalising VAD, the circumstances have been significantly limited to only highly specific situations.

At Carter Dickens Lawyers, we have a fixed fee to prepare an AHD. If you require more information on the availability of AHDs to your situation, please do not hesitate to contact us on (08) 9408 5212 where we can arrange a free 15-minute phone consultation with one of our Lawyers.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your Legal Matter.

Parenting Preparation during the Coronavirus Pandemic

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The Coronavirus pandemic (COVID-19), whilst creating special challenges for all, may particularly affect separated or divorced parents with young children. With the situation rapidly evolving, the long-term outcomes remain to be seen. In light of such uncertainty and the extra stress associated with the COVID-19 pandemic, it can be hard to manage stress for both parents and children alike. However, the following suggestions below may assist separated parents in working through this difficult time:

  1. Adapt and Communicate

In light of COVID-19 and the surrounding anxiety, parents may become angry with the decisions of their ex-partners regarding the children. However, during this time it is important to ensure that parents stay focused on the best interests of their children. Whilst difficult, this will require compromise and polite communication between parents to ensure that needless conflict is avoided. This is a time when the last thing children need to see is their parents fighting about them.

As the impact of COVID-19 on Courts remains unknown, it is uncertain if the Courts will suffer delays. It may be the case that the Courts will have limited availability, with dispute resolution services becoming scarce. As such, separated parents must attempt to resolve issues and manage matters between themselves to avoid long delays. If you have not already done so, it may be useful to consider discussing personal policies regarding the children’s care with your ex-partner. This may include discussing:

  • How time with the children will be divided should school closures occur?
  • Where will changeover occur? Do you have a plan for another location should your current venue become inaccessible?
  • How will the children’s safety and health be maintained?
  • How will you follow government advice about large gatherings such as weekend sporting events?
  • What activities are you both happy for the children to engage in during holidays or otherwise?
  • How you will discuss this scary matter with the children so that they are informed but not panicked?

In certain situations, it may also be worthwhile implementing a parenting plan between yourself and the other parent to address the above concerns, and more, quickly without the need to go to Court. Parenting Plans provide flexibility and can allow for arrangements between parents to be changed as the circumstances require. However, having a Parenting Plan in place does not mean you can neglect any obligations under existing Court orders or agreements.

If you are unsure about how to create a Parenting Plan or are having trouble communicating with your ex-partner, CD Lawyers may be able to assist you. For more information please contact our office.

  1. Continue to meet your obligations

Whilst we are currently living in unpredictable times, that is no excuse to neglect your obligations under a court order or agreement regarding your parenting matter. If for some reason you are unable to meet your obligations, say because arrangements are unclear or because of extenuating circumstances (e.g. school closures or quarantine), you must attempt to find a solution. At the very least, it is essential that where a change is anticipated, you communicate with the other parent providing them with ample notice and information.

If you are having difficulty meeting your obligations CD Lawyers can assist you.

  1. Stay healthy and follow government guidelines

Ensure that you and your children practice healthy hygiene habits to minimise the risk of spreading germs and viruses. Frequently and thoroughly washing your hands, as well as practicing responsible social distancing will reduce the risk of illness both to your family, friends, and others.

Setting an example for children is the best method of ensuring they learn these practices. As such you should let the other parent know you are following these healthy practices to ensure consistency across households.

For more information and access to the Government guidelines please visit:

https://www.health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert/what-you-need-to-know-about-coronavirus-covid-19#protect-yourself-and-others

  1. Be Patient, Positive and Compassionate.

It is important to understand that in these coming months COVID-19 will bring special challenges. This situation will not be resolved overnight, but will require long term changes to the way we work, socialise, communicate and parent.  Despite the stress and anxiety, it is important to think about how you would like the other parent to engage with you about parenting issues and to reciprocate that engagement.

Understand that a certain degree of flexibility will need to be maintained with the other parent to ensure the children are taken care of. The current events are unprecedented and unplanned for. However, maintaining open and positive communication with the best interests of the children in mind will likely reduce conflict and ensure you can focus on your family and not on costly litigation. However, if the other parent is being unreasonable, and you have followed the required pre-action procedures, it may be necessary to issue court proceedings, and we can advise you on this.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Are you legally prepared for COVID-19?

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Whilst we prepare for many events in our lives, we often neglect to discuss the difficult ‘what if’ topics like passing away suddenly. Unfortunately, for many people, this means they leave their family without information and guidance about what to do when they die. Without adequate preparation, your loved ones may be left exposed to drawn out litigation required to settle your estate. As such, it is importantly to ensure you are legally prepared for the unforeseen to prevent further hardship to your family.

On the 11th of March 2020, the World Health Organisation (WHO) declared the Coronavirus (COVID-19) a pandemic. This is just one example of many unforeseeable global issues that may have significant implications for those who are legally unprepared. It is vital that people of all ages ensure that they are prepared for the legal ramifications of death or illness. Please make sure that you stay up-to-date and comply with all government directions and policies regarding COVID-19.

If you have not already done so, you should ask yourself the following questions to see if you are legally prepared for the unforeseen:

Do I have a Will and is it up to date?

No one wants to be worried about their assets from a hospital bed, as such it is vital to have a Will prepared. A Will is a legal document that sets out how you wish for your assets to be distributed after your death. It forms part of an estate plan and is an important strategic step in preserving your property for your family or other beneficiaries.

Passing away without a Will can place a significant burden on your family. It can impose onerous legal fees on your loved ones, and may result in your assets being distributed by the Supreme Court of Western Australia. Having a Will may ensure that your estate is dealt with promptly and efficiently and that your family is not left to fight drawn out legal battles.

Simply put, a Will properly drafted by our lawyers is the best way to have your assets dealt with in accordance with your wishes after your passing. A Will is designed to reduce future complications and reduce the likelihood of disputes arising from the interpretation of your Will between trustees, beneficiaries, and other parties.

Do I have an Enduring Power of Attorney?

An Enduring Power of Attorney (“EPA”) allows you to appoint someone you trust to make property and financial decisions on your behalf in the event you lose the legal capacity to manage your own affairs. This will include managing your money and real estate. An EPA does not permit an attorney to make personal, medical and lifestyle decisions.

In light of events such as the COVID-19 pandemic, the benefits of an EPA are clear given the chances of hospitalisation or isolation. In such an event, an EPA would allow your appointed attorney to undertake a range of tasks  on your behalf when and if appropriate to do so. These may include everyday tasks, such as paying your bills and signing documents that require urgent attention, or more complex tasks such as dealing with your property (i.e. selling property) during your recovery.

Do I have an Enduring Power of Guardianship?

An Enduring Power of Guardianship (“EPG”) allows you to appoint someone to make personal, lifestyle and treatment decisions on your behalf should you ever become incapable of making these decisions yourself. These decisions include, but are not limited to, where you will live and what medical treatment you will receive.

With events such as COVID-19 having potentially life-threatening health impacts, it is vital to ensure that you have a guardian, appointed via a legally enforceable EPG. Your appointed guardian should understand your health care plans, directives and wishes should you become incapable of dealing with your own health care decisions. You must also ensure that if you have already appointed a guardian, they know of their appointment and are willing to act in such a capacity.

Where no attorney is nominated via an EPG you risk having the Public Advocate, which is a government body, appointed to assume responsibility over your health care decisions. This means that should you become mentally, or physically incapacitated without having executed an EPG, your family may not have sole control over your health care decisions.

Did you know that your Superannuation does NOT form part of your estate by default?

Superannuation is not considered an estate asset. A super fund is a type of trust meaning that it is not legally “owned” at the time of death. This means that on death it does not flow to the estate of the deceased automatically. Instead, without a binding death nomination a trustee of the super fund will pay out ‘death benefits’ in accordance with the governing rules of the fund and relevant law. This means that if you arrange to leave all your super to a child or spouse, this might not be honoured upon your passing.

However, an up-to-date Binding Death Nomination can be used to override the trustee’s discretion and ensure that the arrangements you have made during your lifetime are honoured. Simply put, a Binding Death Nomination is a legally binding nomination allowing you to advise the trustee who is to receive your superannuation benefit upon your passing and how to distribute your benefit.

Note, Binding Death Nominations should be reviewed regularly, as they can lapse in binding force after a period (usually 3 years). If you do not have a Binding Death Nomination or have not reviewed it in recent years, we advise that you talk to one of our lawyers regarding your options.

Do I have all my important documents in order?

You should ensure that copies all your important documents are stored together with your Will. Usually, after a person passes away, that person’s family will struggle to locate all relevant documents, passwords, and keys. To assist your family, you should prepare a list detailing your:

  • assets and liabilities;
  • access codes and passwords;
  • the location of keys and other documents i.e. bank account details, superannuation details etc.; and
  • details of your financial advisor, lawyer, accountant, insurance company and similar entities.

It is important to share with someone you trust the location of that list.

Do I need to nominate a guardian for my children?

If you are a parent of a child under 18, it is important that you know who will take care of your children if anything were to happen to you. Generally, whilst care of your children would flow to the other parent, it is worthwhile determining who would assume care of your children in the unfortunate event that both you and the other parent have passed on.

Fortunately, s71(3) of the Family Court Act 1997 allows you as a parent to appoint a testamentary legal guardian for your child via a Will or Deed. The appointment of a guardian will only take effect upon the death of the last surviving parent or legal guardian of the child. The appointment ends when the child reaches the age of 18 years. If you are unsure of who will take care of your children if you and the other parent are no longer, it may be time to speak to one of our lawyers.

If you have not yet prepared the above documents, you leave your family open to the potential of costly litigation. Further, there is no guarantee that your arrangements would be honoured upon your passing if you do not have a legally enforceable Will.

 Contact CD Lawyers today, and we can assist you and your family in ensuring you are legally prepared for the unforeseen.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

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Phone: (08) 9408 5212

info@cdlawyers.com.au