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What is an Advanced Health Directive and should I have one?

Advanced Health Directive

An Advanced Health Directive (AHD) clearly states what sort of medical treatment you do and do not want to receive if you are seriously ill and comes into effect when you are unable to make your own decisions.  You may also set out preferences about organ donation and life sustaining medical treatment.

How an AHD works:

  1. You will out a form with general or specific wishes for treatment; and
  2. Your General Practitioner certifies that you understand the choices you have made; and
  3. Treating medical staff will subsequently refer to your AHD if you can no longer make decisions for yourself.

When entering into an AHD, you should consider:

1.  That you may express wishes in a general way:

  • Any particular type of medical treatment you do or do not want to receive;
  • Specifics regarding medical conditions that medical staff should know, for example an allergy to certain medications, or Diabetes; and
  • any religious beliefs that may affect your treatment, such as blood transfusions.

2.  That you may also give specific instructions about what treatment you do or do not want to receive if:

  • you have a terminal illness;
  • you have an incurable illness;
  • you have an irreversible condition;
  • you are permanently unconscious; or
  • you are so seriously ill or injured that you cannot survive without a life support system.

3.  That you may state whether you would want any particular type of medical intervention to keep you alive, if you had any of the above conditions.  Such interventions may include:

  • emergency measures such as CPR;
  • artificial feeding; and
  • a machine to keep you breathing.

You may authorise your Attorney/s to make decisions about health matters should your directions in your AHD be inadequate.

If you wish to donate your organs only for transplantation and not for scientific purposes, you should register your name on the Australian Organ Donor Register.  You may use your AHD to authorise tissue and organ donations for the purpose of transplantation or for other medical or scientific purposes.

Further details with respect to Powers of Attorney or Advanced Health Directives may be obtained by contacting one of our lawyers, who can offer practical legal advice and guidance, ensuring that your wishes are looked after.

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

 

Family Law with Client Testimonial

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I recently did an initial consultation with a Family Law client.  Hers was not an unfamiliar story.  She had been reluctant to go to a lawyer (for a variety of reasons) but expressed feeling a great sense of relief and empowerment once she had actually done so.  When she shared that with me I told her that I would love to be able to reach out to more people in her situation that could benefit from the peace of mind of just knowing what their rights, entitlements and options are.  In response, she provided the following testimonial:

"Divorce is emotional and unchartered territory.  I was hoping to settle assets with little drama and in the best interest of both my Ex and I.  It's tricky, even with the best of intentions and relationships.

Friends suggested I sought legal advice and recommended Kym Briese.  Kym had previously done all the legal work for our home purchase, so I knew I would be in good hands.

In just 1.5 hours I felt empowered.  Knowledge is power!

Now I have a good idea of what I should expect as an outcome from the divorce proceedings and the confidence to ask for what I'm entitled.

Although hesitant to seek legal advice at first, I'm so thankful I did.  I have a clear road map to move forward and the confidence to take the next step.

Thank you so much Kym."

KP

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

 

Abolition and Replacement of the 457 Visa

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What we currently know about 457 Visas:

  1. The occupation list was significantly condensed, with 651 occupations turning into 435.  From those 435 occupations, access to 24 of those were restricted to regional Australia.
  2. A name change was made to the Consolidated Sponsored Occupation List (CSOL) which is now referred to as the Short-term Skilled Occupations List (STSOL).  The Department of Employment will be providing advice surrounding the update of the Occupation list every 6 months.
  3. The Skilled Occupations List (SOL) was also renamed and is now termed, the new Medium and Long-term Strategic Skills List (MLTSSL).  This list holds occupations that are in line with the Government's longer-term training and workforce strategies and are regarded as being of high value to the Australian economy.
  4. 457 Visas issues from this date for occupations under the STSOL, hold a maximum duration of 2 years.

We know that from 1 July 2017, the following changes came into effect:

  1. The Department of Employment will provide advice in relation to the review of the occupation list under STSOL.
  2. The Department of Education and Training's 2017-2018 SOL outcomes will determine the revision of the MLTSSL occupation list.
  3. The Englist language salary exemption threshold will no longer be available.
  4. Police clearance certificates will be mandatory.

We know that before 31 December 2017, the following changes will occur:

  1. The Department of Immigration and Border Protection will require Tax File Numbers for all 457 Visa holders and other employer sponsored migrants, in order to match data with the Australian Tax Office's records.
  2. Sponsors, who fail to meet their obligations under the Migration Regulation 1994 and other related legislation will have those details published by the Department of Immigration and Border Protection.

We know that from March 2018, the following changes will take place:

  1. The 457 Visa will be abolished and replaced with the Temporary Skills Shortage (TSS) Visa.
  2. The TSS Visa will have 2 streams, a short-term stream and a medium term stream.  Both streams hold different criteria for renewal, occupation and English language requirements.
  3. Eligibility for both streams will be dependent on work experience, labour market testing, salary rate, character check, workforce test and training requirements.

You are affected by these changes if:

If you are currently a 457 Visa applicant, are a prospective applicant or a business sponsoring a skilled migrant and industry, then you are affected by these changes.

Existing 457 Visas will continue to remain in effect.

Need some advice navigating these changes?

Make an appointment to meet with our Migration Agent today.


*This article is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own.

 

 

 

Enduring Power of Attorney:  What is it and do I require one?*

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What is an Enduring Power of Attorney?

There are two types of Power of Attorney – the Enduring Power of Attorney and the General Power of Attorney.

An Enduring Power of Attorney allows health, personal and/or financial affairs to be dealt with in the way you wish, even (and particularly) if you lose the capacity to make decisions for yourself. For example, if you suffer a head injury, develop dementia etc.

What decisions can my Attorney(s) make?

Giving someone an Enduring Power of Attorney means that your Attorney will have the power to make decisions in your interests and sign all necessary legal documents. The power begins:

  • for personal/health matters - only when you are incapable of making decisions yourself;
  • for financial matters - you can specify whether the power is to begin immediately, on a particular date or on a particular occasion, such as your incapacity.

Your Attorney can make decisions such as deciding where and with whom you live, or day to day issues including diet and dress, or those relating to basic health care. However, your Attorney can not make decisions relating to special health matters and special personal matters on your behalf, such as making a Will, or making or revoking a Power of Attorney.

Your Attorney can only act in your best interests and must act with honesty and care and it is an offence not to do so. In relation to your health care, your Attorney must ensure that any decisions made for you contribute to your health and well being and must take into account the advice of your doctor/health care provider

What happens if I don’t have an Enduring Power of Attorney?

If you were to temporarily or permanently lose capacity to make decisions and did not have an Enduring Power of Attorney, the Public Trustee would step in to make financial decisions for you (for a fee) and health matters would be decided by your statutory health Attorney (could be your spouse, a relative or a close friend). Alternatively, your family would need to make an application to the Guardianship & Administrative Tribunal regarding the management of your affairs.

How do I complete an Enduring Power of Attorney?

Your Solicitor can offer practical legal advice regarding these documents, and prepare them on your behalf.  At Briese Lawyers, we frequently prepare Enduring Powers of Attorney for our clients.

 

*This article is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own.

 

 

 

Are you selling your property? Do you have a mortgage over the property you are selling?

bank discharge photo

IF YOU ANSWER YES TO THESE QUESTIONS YOU MAY JUST WANT TO READ THIS VERY IMPORTANT INFORMATION!!

As a Seller of residential Property, your main responsibility is to ensure that ownership of the Property can be transferred to the Buyer immediately after Settlement. For Sellers who have a mortgage over the Property, this means that you need to arrange for that mortgage to be released. This blog will explain how you can obtain the all-important release of mortgage, it will take a brief look at the ramifications if you don’t have it available at settlement, and we will let you know the magical, mind-blowing secret to making sure you will have the release ready on time, every time*.

Think back to when you purchased your house. Do you remember the never ending forest of paperwork that you filled out? Maybe you had to do it more than once (missed signatures, coffee spilled over the papers, your dog ate it…we have heard plenty of stories)! Well the bad news is that when you sell your Property, you will again need to fill in some paperwork (so put that coffee in a safe space and keep the dog outside for a bit). Sorry. But the good news is, the amount of paperwork this time around is less likely to give you terrible hand cramps that are going to keep you up at night, making you wonder why on earth you got into the property market in the first place. In fact, the main document you need to fill out is generally no more than 5 pages. That document is called a “Discharge Authority”. Some banks will let you download this form from their website, but if not, you can contact your bank manager and ask for a copy.  The Discharge Authority notifies your bank that the sale is imminent, provides various details about the sale (including sale price, settlement date, etc), and usually gives scope for you to authorise your bank to contact your solicitor to arrange settlement. Then the bank and your solicitor (us, we hope!) take care of the rest. We are happy to help you prepare this form, but ultimately it is up to you to complete it and send it to your bank, because until you do that the bank won’t talk to us.

Of course, unless your mortgage is completely paid out (well done, you!), your bank wants something in exchange for releasing the mortgage. You guessed it. Money! Your bank will only hand over the release once it receives an amount that is sufficient to pay out the amount owing on your mortgage. In practice, what will happen is your bank will attend settlement on the agreed date (we will be there too, on your behalf because we know you have better stuff to do), and will hand over the release in exchange for the sale funds. The buyer won’t hand over the money unless your bank hands over the release, so it is important to ensure that the release document is ready in time for the settlement date. On top of that, in Queensland, time is of the essence in most residential real estate transactions. The short explanation is that if you can’t settle (i.e. you can’t hand over the release of mortgage) on the due date, the Buyer can sue you for damages. That’s a scary story for another time.

This brings us to our final point – the “magical, mind-blowing secret” we promised you earlier. It’s actually really easy. Here it is: fill out your discharge authority as soon as physically possible, after the Contract has been signed. We don’t mean the week before settlement, we don’t mean the day after your Buyer has confirmed their finance (and various other conditions you have kindly agreed to give them). We mean straight away. The reason is that banks have certain timeframes (which, helpfully, differ depending on which bank you are with) for preparing release documents. Plus, banks are busy people too. So the best thing that you can do to ensure your bank is ready to release the mortgage at settlement is to give them as much time as possible. They will love you for it, and so will we.

If you have any other questions about this process, please contact our friendly, experienced, and funny (see above) conveyancing team.

*Here it is. The expected disclaimer where we tell you that we can’t really promise that our secret works. If it did, we probably wouldn’t hand it out for free. But to be fair, it should work most of the time. We think.

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

 

What happens to your Will when your relationship ends?

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Up until June 2017, the end of a de facto relationship did not have any impact on any Will which the couple might have made during their relationship.  That meant that if they neglected to make new Wills, their old Wills (which usually left everything to their former partner) remained effective.

We once acted for a son and daughter who were to receive nothing from their late father's Estate as he had neglected to change his Will after the very bitter end of his de facto relationship.  He died eight years after he finalised a property settlement with his former spouse but that had no impact on his Will, which left everything to her.  The result was that his children had to engage in a long and costly legal process in order to get any benefit from his Estate.

Married couples have long been in a different position, as a divorce automatically revokes any gift or appointment of a former spouse under a Will (except for an appointment as trustee of any property for their children).  The Queensland Parliament has now corrected this anomaly by adding a new section which deals with revocation on the end of a de facto relationship.

Of course, the question which is bound to arise is how we determine when a de facto relationship has ended!

Whilst this new provision will provide some level of assurance for separated de facto couples, it will not change our recommendation that it is wise to have new Wills and Enduring Powers of Attorney prepared as a priority after separation, regardless of whether it was a marriage or a de facto relationship.  That way, you will not die wondering who will benefit from your Estate.

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

 

The Importance of Pre-Nuptial Agreements

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"Pre-nups" have been made famous by famous people.  You can be sure that the likes of the Kardashians and the Rhineharts and the Murdochs wouldn't walk down the aisle without one.  But does your average wage earner need one, and if they do, are they worth the paper they are written on?

In short, yes and yes.

Whilst we don't have too many celebrities knocking on our door in Toowoomba to draft their pre-nups, they are becoming increasingly common for your average couple.  A pre-nup - otherwise known as a Financial Agreement under the Family Law Act - can be entered into before or during a marriage or a defacto relationship.  We especially recommend them in these scenarios:

  • Where a couple are marrying or moving in together a bit later in life where they have already accrued some assets such as equity in a house and superannuation.
  • Where it's a second marriage and there are adult children of one or both the parties who are worried about their inheritance.
  • Where a couple are buying a property together, with one of the parties contributing more to the purchase price than the other.

The terms of the Agreement can be tailored to suit the couple's particular circumstances.  For example, they may want to 'quarantine' the assets which they each hold at the start of the relationship and then share all assets which are acquired during the relationship equally.

While it might not seem very romantic, it's worth looking at it in the same way as you look at insurance - you don't want or expect your house to burn down, but you insure it just in case the unthinkable happens.

Many people are under the mistaken impression that a Financial Agreement will not hold up to a challenge in the Family Courts.  However, recent cases have demonstrated that the Courts are very reluctant to interfere with an Agreement where all the legal requirements have been met and both parties have been made aware of the consequences.

In one recent case before the Family Court, the Judge dismissed the wife's application to set aside a Financial Agreement on the basis that she did not know the extent of the husband's assets when she signed the Agreement, and further that the Agreement would cause hardship to the children of the marriage (who were in her primary care).

The Court found that while the wife would have had a very different outcome if the Agreement had not been entered into, that was not sufficient grounds to set it aside.  Nor was the fact that she didn't know exactly what the husband's net worth was.  Nor was the birth of their children a "material change in circumstances" which would warrant the setting aside of the Agreement.

A properly drafted and executed Financial Agreement provides a secure insurance policy for couples as they enter a marriage or defacto relationship, freeing them to focus on building their relationship without fear of the financial consequences.

Our family law solicitors are experts at drafting such Agreements.  For more information, call Briese Lawyers on 07 4638 4833.

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

Elder Abuse

This  fact sheet is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

Fur baby in family law tug-o-war

girl and puppy

The rise of the "fur baby" as an alternative to having children has been highlighted in a recent family law case.

In Downey & Beale (not Beagle), the Federal Circuit Court was asked to determine who was the owner of the dog, (name and breed omitted for privacy apparently so we'll call him Spot).

After a five-year relationship, Spot's parents managed to reach agreement about the division of all of their assets, including their jointly owned home, but neither could bear to part with their fur baby.

Each alleged that Spot in fact, belonged to them and each was prepared to pay their lawyers to take the matter to trial.  Somewhat surprisingly, in law a dog is considered a "chattel" rather than a person with four legs and a tail, so the Court has the power to make orders about who owns the chattel and whether there should be any adjustment of interests in that chattel.

Spot was purchased early in the relationship by Mr Beale.  He alleged that he bought Spot for himself, but Ms Downey claimed that Spot was an early birthday present for her.  There was no dispute that Mr Beale paid the $300 fee for Spot, but Ms Downey claimed she was the one who found Spot's adorable picture online and chose him.

Spot lived happily with his parents but it was apparently Ms Downey who took him to the vet as she was able to produce to the Court five vet bills which were addressed to her and referred to her as "owner".  She also produced bank statements to evidence payment of expenses from her bank account for a pet.

Spot was never registered until eight months after the parties separated, at which time Mr Beale registered him and listed himself as the owner.  The Court took a cynical view about this step, given that by that time it was already apparent that the dog's ownership was in dispute.

Ultimately, after considering all the evidence, the Court found that Spot had been purchased as a gift for Ms Downey, she had possession of Spot and she had contributed to his maintenance in such a fashion that it could not be considered appropriate to vary ownership.

My view about this case?  Seems a bit "ruff" that Dad didn't even get alternate weekends and half the holidays............ :)

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

Is it worthwhile appointing a guardian for my infant children under my Will?

The simple answer is "yes".

A guardian appointed under the Will has all the powers, rights and responsibilities for making decisions about the long-term care, welfare and development of a child that are ordinarily vested in a guardian.  An example of such a decision would be in relation to a child's education and religious upbringing.

Generally, the appointment will take effect on the death of the last surviving parent.  In that case, the guardian would also have the right to have the child's daily care (ie. custody of the child) unless another person obtains this right under a Court Order.  This is your opportunity to express your wisehes as to who should look after your child and this appointment will stand unless somebody strongly disagrees and he or she would need to go to Court to argue the point (with no guarantee of success).

The appointment of a guardian can also provide comfort to divorced parents.  You can specify that the appointment should take effect on your death, even if the other parent is still alive.  The surviving parent would have to make decisions about the long-term care, welfare and development of the child jointly with the guardian you have appointed unless he or she applies to the Court to have the appointment revoked.

Often, the thing worrying young couples the most is who would look after their children if they were no longer around.  Appointing a guardian under your Will is your opportunity to choose the person you want to look after your children and can give tremendous peace of mind.

 

This information is provided as a general guide only and should not be used or relied upon by any person without obtaining legal advice in relation to their own circumstances.

 

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