Blogs on northlakes.com.au

The topic of this blog today, is a question which is regularly asked by clients who come to see us to have their Wills prepared.  In many cases, these clients believe that in preparing a Will, they will be able to capture and deal with any built up entitlements in their Superannuation Funds along with the rest of their other regular assets.  In almost all cases however, that belief is incorrect!

The short answer to our question is that a person’s entitlement under a Superannuation Fund stands completely independent and apart from that person’s other regular assets and, as a consequence, when a person prepares a Will, that Will is only capable of dealing with the person’s regular assets and will have no applicability to the Superannuation Fund.  In almost all circumstances therefore, the Will cannot attempt to speak for the Superannuation asset.

So why is this so and what must be done to cover the Superannuation.

Why is ...

In circumstances where the person who has been appointed as the Attorney, winds up abusing the powers and uses the Attorney document to make payments which are considered, to be of no benefit for the Principal, what can be done?

The first question is who has the right to complain and second where exactly is that complaint lodged.

As for where the complaint is lodged, it is lodged with the Queensland Civil Administration Tribunal, or (“QCAT”) for short.  Alternatively, in more serious circumstances, the complaint can be lodged with the Supreme Court.

The persons who have the right to raise the questions are:

• The maker of the Enduring Power of Attorney - “the Principal”;
• A member of the maker’s family. (This includes the spouse, any of the children who are over the age of 18 years including step-children or adopted children, the maker’s parents including step-parents and if none of the above, the maker’s siblings who are 18 years or ...

In Parts 1 and 2 of this series, we looked at circumstances where the attorney can use the principal’s money to pay for direct expenses of the principal and circumstances where the attorney’s personal time and/or out-of-pocket expenses can be reimbursed.  In circumstances however, where the attorney themselves (or possibly other persons) can be considered to be “dependant” on the principal, the rules as to when the attorney may have recourse to the principal’s funds to pay for expenses/benefits are different.

A “dependant” is defined in the Powers of Attorney Act and the Guardianship and Administration Act (“the Acts”) to mean “a person who is completely or mainly dependent on the principal”.  A clear example of this would be a young child of the dependant, who lives with the principal and who relies solely on the principal for accommodation, clothes and food.  However, it should also be noted that the definition does not require that the dependant and ...

In Part 1 of this series, we identified that the types of expenditure that an Attorney might be called upon to meet on the Principal’s behalf can be broken into four separate categories being, direct living costs, reimbursement for time spent by the Attorney in looking after the Principal, reimbursement of the Attorney’s out-of-pocket expenses incurred in providing care for the Principal and finally paying expenses which relate entirely to third parties with no direct connection to the Principal at all.

In this instalment, we will deal with the rules surrounding the second and third types of expenditure being:

• Reimbursement for time spent by the Attorney in seeing to the needs of the Principal; and
• Reimbursement to the Attorney for out-of-pocket expenses incurred by the Attorney in the process of providing care for the Principal.

The rules in regards to these two categories of expenses do change depending upon whether the Attorney can be considered to be financially “dependent...

When a family is young, the children born to the parents are of course totally dependent upon Mum and Dad for physical, emotional and financial support.  As the family ages however, these roles inevitably begin to reverse as the children grow up and it is then the parents who become frail and needy.  In these circumstances, it is very common for the parents to make use of an Enduring Power of Attorney by which they might appoint some or all of their children to take care of financial and personal health needs on their behalf.  Initially, those needs might start small and only extend to the odd one off thing here and there however, as the parents continue to age, the needs for personal support will obviously increase.

As the Attorney(s) (the person appointed under the Attorney to do the work) takes on greater and greater responsibility for the Principal (this is the term used to describe the person who ...

Well managed businesses plan and budget for sales, expenses, cashflow and growth.  At the same time, however – they should also plan for and anticipate the various changes that occur to a business through possible death, disability, retirement or resignation of key staff members.  Planning for these sorts of unknowns is commonly referred to as “Succession Planning’. 

It is estimated that the vast majority of businesses do not have a formal succession plan in place.  Whilst organisations commonly consider who is next in line for the most senior leadership positions, effective succession planning extends beyond this to ensure that employees are recruited and developed to fill each key role within the company.

The following is a basic checklist to follow when approaching succession planning:

• Commence succession planning early in the life of the business.
• Understand the overall strategic plan of the business.
• Determine the key roles needed for the future.
• Assess the talent needed to grow, or introduce, in order ...

A Google search anywhere in the world at the moment is almost certain to bring up dozens, if not hundreds of hits on the controversy over whether persons in same sex relationships ought to be allowed to formally marry each other in the same way that a heterosexual couple can.

Same sex couples argue that by being denied the right to formally marry each other, they are being denied access to rights/privileges (and responsibilities) which come to a married couple as of right. The counter-argument appears based in a conservative moralistic view point that society ought not legitimise a same sex union. There is of course very passionate and heated points of view coming from both sides of this debate and it is not the focus of this blog to weigh in with an opinion as to who is right and who is wrong.

It is however important to understand exactly what is being denied to a same sex couple who are ...

In Parts 1 – 4 of this series, we have covered how the victims of domestic violence might protect themselves from their aggressors.  In this final part however, we cover the reverse situation, being where a former spouse in a relationship is actually misusing the powers of the Domestic Violence legislation to falsely claim the protection of a Domestic Violence Order in circumstances where there is no justification for doing so.  Set out below are some initiatives which a spouse on the receiving end of a wrongful application for Domestic Violence Order might use to protect themselves from the process.

Consent to Orders without admissions – Since a Domestic Violence Order itself is merely a promise to keep the peace around the other spouse, in many cases, it is cheaper, quicker and certainly far less painful to simply present before the Court on the first return date of the application and consent to the making of an Order on ...

In Parts 1 – 3 of this series, we have covered an explanation of what must be proved to obtain a Protection Order, the types of Orders that can be made and to whom the protection of a Domestic Violence Order can extend.  In this instalment, we concentrate now on the practicalities and processes.

What is the procedure for applying for an Order? – Applications for Domestic Violence Orders are made on a standard form which is available at the registry of any Magistrates Court and online here. The form basically explains all of the information that is needed to get the Application under way.  Alternatively, in situations where police are called out to a domestic disturbance, it will be the police (in extreme circumstances) who will make the Application on behalf of the victim spouse.

Who does the leg work from point of Application through to final hearing? – Once the Application is filed, the Application document will ...

In Parts 1 and 2 of this series, we have discussed the types of behavior that would give a person the entitlement to seek the protection of a Domestic Violence Order and the specifics of what must be proved for such an Order to be made.  In this part we discuss the specifics of what a Domestic Violence Order can actually say and explain the persons/relationships between whom the Orders can be made.

What are the conditions for protection that can be put into a Domestic Violence Order? – If a Court elects to make a Domestic Violence Order, there will always be a standard Order that says that the guilty spouse is required to keep the peace around the innocent spouse and an Order that revokes any weapons licences that person may have, which in turn obligates the guilty spouse to immediately surrender any such weapons to the police.

Beyond these mandatory conditions however, the Court can also and ...