The Powers of Attorney Act 2014 (“ the Act ”) introduced significant changes to enduring powers of attorney in Victoria. The changes under the Act, outlined below, came into force on 1 September 2015.
Importantly, the Act does not invalidate any pre-existing enduring power of attorney and it does not make any changes to enduring powers of attorney for medical treatment.
There is some new terminology in the Act. The person giving the power is now referred to as a ‘principal’ (previously donor). General powers of attorney are now referred to as ‘non enduring powers of attorney’.
‘Enduring Power of Attorney’ (“EPA”)
The Act has introduced a new enduring power of attorney form which is entitled ‘Enduring Power of Attorney’ or ‘EPA’. EPA combines the documents which were previously known as ‘ Enduring Power of Attorney (Financial) ’ and ‘ Enduring Power of Guardianship ’.
The Act now labels guardianship matters as ‘personal matters’. Personal matters have been expanded to include:
Under the Act it is now possible to appoint more than one personal attorney in the same manner that was previously only available to the appointment of financial attorneys.
Additionally, the Act now allows for the appointment of ‘majority attorneys’.
Although the new EPA form now allows for the appointment of financial attorneys and personal attorneys in the one document, there are situations where separate documents are preferable. Fortunately, the Act provides flexibility on whether a combined document or separate documents are used.
The Act has amended the witnessing requirements for EPAs. Previously, two witnesses were required to be present, with one being authorised to witness statutory declarations. It is now a requirement that one of the two witnesses is authorised to take affidavits or be a medical practitioner.
There is now a prohibition on the witnesses being related to the principal or to any attorney appointed in the EPA. There is also a prohibition on the witnesses being care workers, health providers or accommodation providers for the principal.
Furthermore, there is a prohibition on the principal appointing a care worker, health provider or accommodation provider as their attorney. The Act is referring to
care workers and accommodation providers. Centrelink carer’s pensions are specifically excluded from consideration when determining whether an attorney is a care worker for the principal. Similarly, a principal that resides with an attorney is permitted provided the attorney is not acting as a professional accommodation provider for the principal.
A supportive attorney is a person who is authorised to exercise any of the following powers:
Supportive attorneys are unable to assist in ‘significant financial transactions’ (defined generally as a transaction dealing with land or finances in excess of $10,000.00). Additionally, a supportive attorney is only able to exercise their powers whilst the principal retains capacity.
The Act now outlines the duties of an attorney. These duties are as follows:
It is now an offence for an attorney to obtain or to use an EPA to obtain financial advantage or to cause loss to the principal. A fine of up to 600 penalty units or up to 5 years imprisonment can apply where an attorney is guilty of an offence.
Additionally, an attorney who breaches their duties and causes loss to the principal will be liable to indemnify the principal or the principal’s estate.
It is important to note that the new offence provisions under the Act will apply to all attorneys, whether authorised under the (new) Act or the Instruments Act 1958 .
Finally, attorneys are now unable to enter into ‘conflict transactions’. A conflict transaction is simply a transaction that conflicts between the interests of the principal and the attorney, or a relative, associate, or close friend of the attorney. A principal may authorise an attorney to conduct conflict transactions in the EPA document and it is therefore important to consider what type of conflict transactions should be permitted at the time of preparing the EPA.
Enduring powers of attorney remain an essential part of all estate plans. Should you wish to discuss any of the new changes or would like to know more on these issues, please contact Jesse Rankine on 03 5226 4106 or by email at email@example.com .
Deborah Anderson has joined Wightons Lawyers. Deb is an accredited specialist in Wills and Estates and brings a wealth of experience to our busy Wills and Estates department.
We are thrilled to have her join our team. Please view her full profile on our PEOPLE page.
Family violence continues to cause distress, harm and concern to the victims, families and the community. Family violence comprises not only acts of physical harm but also verbal abuse, intimidation, denigration, controlling behaviour and sexual abuse. It also includes financial or economic abuse where one party seeks to control another through withholding or a threat to withhold necessary financial support. Protection is provided to the victims through the Family Violence Protection Act 2008.
Family violence is not limited to family members. A person, who is subjected to stalking or harassing behaviour or receives threats or sustains property damage, may be able to seek an Intervention Order through Personal Safety Intervention Orders 2008 legislation. Any person in fear for their wellbeing should seek assistance from the police or attend at the Magistrates’ Court and make an application for an Order.
An Intervention Order is an order generally made by the Magistrates’ Court. The Magistrate must be satisfied that an act constituting family violence has occurred and that it is likely to occur again. If an Order is made, there is no “criminal” record as the proceedings are essentially civil in nature. However if there is subsequent conduct which breaches the Court Order, this conduct may constitutes a criminal offence and could result in the perpetrator receiving a police record (including a conviction or non-conviction). The penalties for breach of an Intervention Order can be significant including a term of imprisonment.
Many people are concerned that the existence of an Intervention Order may prevent them from seeing their children. The Court is aware of the importance of supporting a child’s relationship with his or her parent but this must occur in a manner which ensures the child’s safety and promotes their best interests. It is not unusual for an Intervention Order to allow a person to still spend time with their child in accordance with any Family Law Order, Child Protection Order or written agreement but only if they do not commit any act of family violence during that time.
Victims of family violence should seek the support of Victoria Police or one of the several support agencies in the Geelong region. Assistance is available to the perpetrator of family violence to address their behaviour, identify the impact on their family members and learn the necessary skills to avoid future behaviour which causes family violence.
If required, victims of family violence can access urgent crisis accommodation and may be eligible for assistance through the Victims of Crime Assistance Tribunal. Enquiries can be made through Victoria Police initially.
Should you or a family member seek further advice, please contact one of our family law team members for assistance.
Running a business can be hard enough without having to deal with debtors who owe you outstanding sums of money. Try as you may, sometimes it can be very difficult to recoup these debts yourself.
Engaging a lawyer to act on your behalf can allow you to turn your mind back to the running of your business.
Debt collection via legal action begins initially with a letter of demand which is often all that is required for the debtor to pay the amount owing to you. A letter of demand sent from a lawyer is generally more effective than one sent personally. Should the debtor fail to respond or pay the amount owing to you your lawyer would then seek your instructions to commence legal proceedings against the debtor personally or against their company depending on the situation.
Filing an initial complaint and statement of claim with the appropriate court depending on the amount claimed will allow you to identify what is owed to you, claim interest on the outstanding amount and claim for legal costs on scale. The complaint will then be served on the debtor, after which they will have 21 days to file a defence. Should they fail to file a defence your lawyer will make an application for a default judgment which is an order in your favour for the amount sought. This judgement will be registered against the debtors name personally, or if they are a company, against the company name. There are initial fees for filing and serving the complaint but these can also be claimed back form the debtor.
The registered judgment will remain on their credit report for 5 years and will likely affect any applications they make regarding finance. The judgement remains enforceable for 15 years.
If the debtor does not pay following the default judgement being entered against them enforcement proceedings will be commenced in which a Summons for Oral Examination is served, resulting in the debtor being summoned to attend court to answer a range of questions under oath. These questions enable your lawyer to ascertain which enforcement method will be most effective for you. Should the debtor fail to attend court to answer the summons a warrant may be issued for their arrest and they will be forced to attend court.
There are a number of different enforcement proceedings but some of the more common methods are: Attachment of Earnings Order, Attachment of Debt, Instalment Order and Warrant to Seize Property. There are filing fees for each of the enforcement methods but all fees can be claimed back from the debtor.
Should you require assistance with recovering money owed to you or your business please feel free to contact Ben McLean on 03 5226 4138 to discuss your matter.
The Powers of Attorney Amendment Act 2016 and the Power of Attorney Amendment Regulations 2017 have come into effect as and from 1 May 2017.
The updates provide the long awaited ability to appoint multiple ‘alternative’ attorneys.
This is particularly useful where clients wish to appoint their spouse as their attorney in the first instance, and only on the death or incapacity of that spouse, then an appointment of two or more of their children. Although this was previously possible by executing multiple enduring powers of attorney documents with special conditions, it is now possible to simplify this arrangement in a single document.
The updates also provide minor alterations to the forms, including the removal of the revocation clause in most instances. Unless specifically stated in the document, the execution of a new enduring power of attorney will revoke all previous appointments regardless of whether those appointments were made under the Instruments Act or the Guardianship and Administration Act or the Powers of Attorney Act.
Enduring powers of attorney remain an essential part of all estate plans. Should you wish to discuss any of the new changes please contact Jesse Rankine on 03 5226 4106 or by email at firstname.lastname@example.org.
If a person dies without signing a valid will they die ‘intestate’. This means that the distribution of their estate will be made in accordance with the rules of intestacy.
These rules can be simple or complex depending on your family situation.
Two common misconceptions are that, if you die without executing a will, then:
1. Your estate will pass to the government; or
2. Your surviving spouse will inherit 100% of the estate.
Although both scenarios are possible, both are relatively rare. One requires the person to have died leaving no next of kin and the other requires the person to have died leaving a spouse but no children.
It is more common for a person to die leaving both a spouse and children. The current intestacy rule for this situation is as follows:
In the above example, the child obtains significantly more than the spouse. Most people would want the opposite.
Perhaps this is the reason why the new Administration and Probate and Other Acts (Succession and Related Matters) Bill 2016 now proposes to change the rules of intestacy. Under the new rules if a person dies leaving both a spouse and children the division will be as follows:
This means that, typically, 100% of the intestate’s estate will pass to the surviving spouse unless there are children from other relationships.
The introduction of the above Bill illustrates the importance of having your own will as opposed to leaving the distribution of your estate to the default rules of intestacy. Because the rules are updated from time to time, it is impossible to know what the rules will be at the time of your passing. It would be naive to assume that the rules will not change again at some point. The only way to be completely confident of how your estate will be dealt with is to have your will prepared and executed with a suitably experienced solicitor.
Should you wish to know more on these issues, please contact Jesse Rankine on 03 5226 4106 or by email at email@example.com .