Category Archives: Recent News

Enduring Powers of Attorney

What is an enduring power of attorney?

A power of attorney is a legal power given to another person to make decisions on your behalf.

When you give an ‘enduring’ power of attorney, this means the power will continue even if you are no longer able to make decisions yourself.

Why should you consider giving someone an enduring power of attorney?

Throughout your life, situations can arise where you are no longer capable of making decisions about important matters which affect you. These circumstances can be anticipated and unexceptional, like taking an overseas holiday, but they can also be sudden and unforseen, such as serious illness or injury.  In these situations, it is important that there is someone else who is able to make decisions on your behalf.

What kinds of decisions does this power involve?

You have the option of giving your attorney the power to make decisions about (i) personal and health matters or (ii) financial matters, or both. 

Personal and health matters may include decisions about:

·         Your place of residence

·         The people you live with

·         Your work, education and training

·         What you eat and wear

·         Medical procedures

Financial matters may include decisions about:

·         Investment strategies

·         Payment of debts

·         Your budget

In the case of financial matters, you also have the option of giving your attorney decision making power with respect to a limited range of matters.

Who should you appoint as your attorney?

It is important that you appoint someone that you trust to be your attorney. This is often a spouse or child, but some people prefer to appoint a family member or friend, a trustee company, the Adult Guardian or the Public Trustee.

It is also possible to appoint more than one attorney. You may appoint two or more attorneys to act ‘jointly’ (i.e. together), as a ‘majority’, ‘severally’ (i.e. any one of your attorneys can sign) or ‘successively’ (power is given to one attorney and when this power ends or the attorney is no longer willing or able to act, the power is given to another attorney).

Workplace Anti-Bullying Laws

On 1 January 2014, amendments to the Fair Work Act 2009 (Cth) introduced new anti-bullying workplace laws throughout Australia. Workers are now able to commence civil proceedings before the Fair Work Commission (FWC), regardless of whether alternative avenues already exist. The amendments form part of the Government’s response to the House of Representatives Standing Committee on Education and Employment Inquiry report Workplace Bullying ―We just want it to stop, which recommended that the Government provide ‘an individual right of recourse for persons who are bullied at work to help resolve the matter quickly and inexpensively’. Previously, remedies for workplace bullying were found across numerous areas of law, including Work, Health and Safety law, criminal law and anti-discrimination law.

Under the new legislation, a worker who ‘reasonably believes’ that he or she has been bullied at work may apply to the FWC for relief. Employees, contractors, apprentices, work experience students and volunteers all fall within the definition of a ‘worker’ for the purposes of the legislation.

Pursuant to section 789FD(1), a worker is ‘bullied at work’ if an individual or group of individuals repeatedly behaves unreasonably towards them and that behaviour creates a risk to health and safety. While ‘unreasonable behaviour’ is not defined in the Act, the Explanatory Memorandum in the legislation indicates that this behaviour would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.

Prior to making an order, the FWC must be satisfied that the alleged bullying has actually occurred and that there is a risk that the worker will continue to be bullied at work. The focus when making an order is on resolving any conflict and allowing normal working relationships to resume; as such, the FWC cannot make an order requiring compensation or the payment of a pecuniary amount. Examples of orders that the FWC may make include an order requiring the individual or group of individuals to discontinue the behaviour, regular monitoring of behaviours by an employee and compliance with an employer’s workplace bullying policy.

Challenging a will

When a person writes their will, they often assume that it cannot be contested and that their estate will be distributed in accordance with their wishes. While this is generally the case, it is important to keep in mind that under certain circumstances, it is possible for a will to be challenged and for a court to intervene on behalf of another person.

 The most common type of challenge is called a Family Provision Application. Such an application is made to a court by a person who claims a deceased person has failed to make adequate provision for the applicant’s proper maintenance and support.

 Under the Succession Act 1981 (Qld), applications can only be made by a deceased person’s spouse (which includes de facto partners), children (which includes step-children) and dependents. If the applicant’s claim is successful, the court has the power to order that provision be made out of the deceased person’s estate, in the amount that it thinks fit. 

 Factors that a court may take into account when considering a claim include: the size and nature of the deceased estate; the applicant’s financial position; the relationship between the applicant and the deceased; the relationship between the deceased and other persons with potential claims against the estate and the needs and financial positions of other beneficiaries.

 It is important to note that strict time limits are imposed on Family Provision Applications.

 If you are considering making a Family Provision Application, it is advisable that you seek expert advice as soon as possible to ensure that you are able to comply with these strict time limits.