Succession, attorney & guardianship law reforms
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Powers of Attorney, Guardianship
and Succession law reforms -
planning for 2015Daniel Kelliher
Anita Courtney
Michael Labiris
12 November 2014
Russell Kennedy Solicitors
Updates on:
• Powers of Attorney – Daniel Kelliher
• Guardianship – Anita Courtney
• Succession Law – Michael Labiris
Introduction
2
1. Powers of Attorney Act 2014
New Legislation
4
Title Purposes Commencement
Powers of
Attorney Act
2014
1. consolidate the existing laws relating to powers
of attorney
2. provide for the appointment of a “supportive
attorney”
3. repeal Parts XI and XIA of the Instruments
Act 1958
4. repeal Division 5A of Part 4 of the
Guardianship and Administration Act 1986
1 January 2015
Key areas of New Law:
• Improved General Power (GPA)
provisions and new form
• “Supportive Attorneys”
• Enduring Powers – extensive new regulation
• replacement of Part XIA, Instruments Act
• Improved VCAT jurisdiction
• incl Compensation Orders, offences and penalties
Powers of Attorney Act 2014
5
Section 4 defines “decision making
capacity”
• Requires understanding, retention, reasoning and
communication abilities
• Use of “modified language, visual aids or any other
means” and “practicable and appropriate support”
are encouraged to prompt understanding
• Capacity may differ depending on the decision,
incapacity may be temporary, decisions can be
unwise but should not be seriously injurious to
health or wellbeing
Powers of Attorney Act 2014
6
• Section 7 and Schedule Form
• Adds alternative attorneys
• Permits later commencement
• Silent as to revocation
• Far simpler and less regulated than EPAs
General Powers of Attorney
7
• Prescribed Form required
• And not yet developed
• Attorney’s implementation (execution)
powers exclude “significant financial
transactions” (eg. Above $10,000)
• Will allow transitional supported decision-
making, where a donor is reluctant to cede
Power until they are incapable
• Less power, but lower risk for the Attorney
Supportive Attorneys
8
Key new matters EPAs:
• New prescribed form, not yet developed
• Combines EPAFs and EPG
• Enduring Powers Financial (2004-2015)
• Enduring Powers of Guardianship
• Section 3 definitions
• “personal matters”
• “financial matters”
Enduring Powers of Attorney
9
Key new matters EPAs (cont):
• s21 “principles” = new duties to the Donor
• s23 donor matters to understand
Enduring Powers of Attorney
10
• Eligibility section 28:
• Adult, not insolvent
• not a care worker, a health provider or an
accommodation provider for the principal
and
• for financial matters, either free of
dishonesty offences or they must be
recorded/acknowledged in the Power
Enduring Powers of Attorney
11
Key new matters EPAs (cont):
• s29, appointment by position/status
• s30, multiple appointments incl joint, joint
& several and now, “majority decisions”
Enduring Powers of Attorney
12
Key new matters EPAs (cont):
• s31, alternative attorneys
(Very little change)
• Sections 37 & 38, stricter acceptance
• s39, commencement on cessation of
decision-making capacity; s40
notifications; S41 continuation if capacity
regained
Enduring Powers of Attorney
13
Key new matters EPAs (cont):
• Revocation much more formal
• Prescribed form with strict witnessing and
certification required
• New Power will be most efficient
• By resignation, death or disqualification
• s62, other multiple attorneys retain power
Enduring Powers of Attorney
14
Key new matters EPAs (cont):
• Duties of Attorneys, s63
• Conflict transactions & permitted conflicts
• Disagreement
• Personal attorney prevails over solely
financial attorney (where distinctions apply)
Enduring Powers of Attorney
15
VCAT & supervisory provisions
• Compensation by attorney to donor, s77
• Extended VCAT jurisdiction, Part 8
• Part 9 offences
• Penalties, section 135:
• Natural people, level 6 imprisonment (5
years maximum) or 600 penalty units or
both; Body corporate, 2400 penalty units.
Enduring Powers of Attorney
16
In Summary
• Greater Attorney responsibilities/risks
• More sophisticated regulation
• with occasional complexity
Enduring Powers of Attorney
17
2. Guardianship &
Administration Bill 2014
Bill not passed
19
Title Purposes Status
Guardianship
and
Administration
Bill 2014
1. re-enact with amendments the law relating to
guardianship and administration
2. repeal the Guardianship and Administration
Act 1986
3. consequential amendments to various other
Acts
Not passed prior
to the election –
will need to be
reintroduced
>Guardianship and Administration Bill
2014
> Introduced 20 August 2014
> Not passed
> Will need to be re-introduced after
election
>Complements the Powers of Attorney
Act 2014
Guardianship &
Administration Reforms
20
• Definition of capacity (clause 4)
• Use of “modified language, visual aids
or any other means” and “practicable
and appropriate support”
• May differ depending on the decision
• Incapacity may be temporary
• It should not be assumed that a person
does not have capacity for a matter on
the basis of their appearance
Key Aspects: Capacity
21
• Three types of appointments
• Guardians for personal matters only OR
for personal and financial matters
• Administrators for financial mattes
• Definitions (and examples) of
‘personal’ and ‘financial’ decisions
• New concept: supportive guardians
Key Aspects: Appointments
22
• Greater involvement by VCAT in early
stages
• Greater emphasis on appointing
persons with a relationship rather than
professional persons/organisations
• Relatives/carers can file a document
that sets out their wishes
Key Aspects: VCAT
23
• Offence where a guardian,
administrator or supportive guardian
“dishonestly uses their appointment to
gain financial advantage or cause loss
to the represented person”
• Compensation orders
Key Aspects: Offences and
Compensation
24
• LIV/Federation of Community Legal
Centres
• VCAT statements re wishes of family
members/representatives
• Could have the effect that the most
suitable person(s) not appointed.
• Criteria for appointment parental
guardianship and administration orders
• Limit it to “significantly impaired”.
Criticisms
25
3. Justice Legislation
Amendment (Succession and
Surrogacy) Act 2014
New Legislation
27
Title Purposes Commencement
Justice
Legislation
Amendment
(Succession
and
Surrogacy) Act
2014
1. amend the Administration and Probate Act
1958 in relation to:
(i) family provision claims
(ii) rules for the payment of debts of an estate
(iii) administration of small estates
2. amend the court authorised wills scheme in the
Wills Act 1997
3. amend the Status of Children Act 1974 to
allow registration of a surrogate birth if a
parentage order is made by an interstate court
1 January 2015
• Regulates how property is
administered and distributed
on the owner’s death
• Estate vs non-estate assets
• Wills & intestacy schemes subject to
family provision law
What is Succession Law?
28
• Roman origins of family provision law –
lex Falcidia
• English law generally permitted full
testamentary freedom (with minor
exceptions)
• New Zealand initiative of 1900
• Followed in Australia and UK
Historical background to
family provision law
29
• 1958 to 1998 – only the widow, widower and
children of a deceased person could claim
• 1998 to 2014 – any person could claim if:
1. Testator had “responsibility to make
provision” for them
2. The will (or intestacy scheme) does not
make adequate provision for their
“proper maintenance and support”
Development of family
provision law in Victoria
30
• VLRC Report Sep 2013
• Legislation introduced August 2014 –
excluded adult children who were not
disabled or dependent
• Amended legislation introduced and
passed in September 2014 – will now
apply to estate of any person who dies
from 1 January 2015
Recent law reform
31
• Application within 6 months of date of grant
• Court may make order if satisfied:
1. Plaintiff is an “eligible person”
2. In some cases, the “eligible person” must be “wholly
or partly dependent on the deceased for proper
maintenance and support”
3. Deceased had a moral duty to provide for the
plaintiff’s proper maintenance and support
4. Distribution of estate (by will or intestacy) fails to
make adequate provision for the proper maintenance
and support of the plaintiff
New Legislation
32
Eligible person:
Automatic right to apply
33
• A spouse or domestic partner of the deceased at
the time of the deceased's death
• A former spouse or former domestic partner of the
deceased (in limited circumstances)
• Any child (including adopted child) of the deceased
• Any step-child of the deceased
• A person who, for a substantial period during the life
of the deceased, believed that the deceased was a
parent of the person and was treated by the
deceased as a natural child of the deceased
• A grandchild of the deceased
• A spouse or domestic partner of a child of the
deceased if the child of the deceased dies within
one year of the deceased's death
• A registered caring partner of the deceased
• A person who, at the time of the deceased's death,
is (or had been in the past and would have been
likely in the near future, had the deceased not died,
to again become) a member of the household of
which the deceased was also a member
Eligible person:
Must also be dependent
34
• Court may not award amount that is greater than is necessary
for the eligible person's proper maintenance and support
• For eligible persons who must be dependent:
• Court must take into account degree of dependence
• Amount awarded must be proportionate to the eligible person's
degree of dependency on the deceased for the person's proper
maintenance and support at the time of the deceased's death
• For children over 25, or over 18 and not a full-time student,
who do not have a disability, the Court must take into account
the degree to which the child is not capable, by reasonable
means, of providing adequately for his or her own proper
maintenance and support
New limitations on claims
35
36
QUESTIONS
The information contained in this
presentation is intended as general
commentary and should not be regarded as
legal advice. Should you require specific
advice on the topics or areas discussed
please contact the presenter directly.
Disclaimer
37
38
Daniel Kelliher
Special Counsel
Tel: 9609 1662
dkelliher@rk.com.au
Anita Courtney
Associate
Tel: 8602 7211
acourtney@rk.com.au
Michael Labiris
Lawyer
Tel: 8640 2304
mlabiris@rk.com.au
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