Voluntary Assisted Dying Implemented In WA

The introduction of voluntary assisted dying legislation in Western Australia was very contentious and divisive. Now that the new legislation is in force, when does it apply and what is the process involved?

On 1 July 2021 the Voluntary Assisted Dying Act 2019 came into effect and eligible West Australians gained access to voluntary assisted dying.

Voluntary assisted dying allows eligible adults to request and access medical assistance to end their life if they are suffering from an advanced, progressive disease, illness or medical condition that is expected to cause death within 6 months (12 months for neurodegenerative diseases). The disease, illness or condition must also cause suffering to the person that cannot be relieved in a manner that the person considers tolerable.

The Process

To initiate the process, a patient must make the first clear and unambiguous request to an eligible medical practitioner for access to voluntary assisted dying.

After the first request is made the patient is assessed by at least two independent and appropriately trained medical practitioners. First, the medical practitioner that accepts the request, referred to as the coordinating practitioner, and if they are satisfied then secondly, the consulting practitioner.

Throughout the process, the patient must make 3 separate clear and unambiguous requests for voluntary assisted dying. The first request mentioned above, a written declaration that is witnessed by two people and can be made after a patient is assessed as eligible, and a final request. The final request can only be made after the end of the designated period (currently a 9-day period beginning on the day that the patient made the first request).

Voluntary

One of the key criteria required to access the voluntary assisted dying process is that it must be voluntary. The person must have the requisite enduring capacity to make the decision for themselves and the decision must be made without coercion.

A person cannot access the voluntary assisted dying process if they have lost their decision-making capacity.

Where possible, every person should carefully consider their treatment wishes while they have decision-making capacity and should ensure that they have valid and up to date estate planning documents, which may include a will, enduring power of attorney, enduring power of guardianship and an advanced health directive, that reflect their current wishes. You may also wish to ensure that your families and health practitioners are aware and informed of your treatment wishes should you become terminally ill, bearing in mind that they cannot access voluntary assisted dying on your behalf.

For legal advice on the voluntary assisted dying legislation, please contact our Wills and Estates team.

Our Wills & Estates Lawyers in Perth provide specialist advice and assistance on a range of estate planning, wills and probate areas on a Fixed Fee Price basis. Our Wills & Estate Lawyers in Perth can help you with understanding, advising and planning:

 Contact BBV Legal to book an appointment today.  Bowen Buchbinder Vilensky has over 25 years of experience providing legal services in Perth.

Estate Planning In a Digital World

There is no disputing the fact that we now live in a digital and technological world. Here’s what you need to know about estate planning in a digital world.

Personal diaries have been replaced by blogs and social media accounts, books replaced by kindles, bank cards replaced by digital wallets and you can now do most of your shopping from the comfort of your own home. There is no escape from the advancement of technology and as time goes on, more and more of our possessions will be digitised.

The question now is: what happens to these digital assets when you die and how can they be transferred to another person?

What Are Digital Assets?

In simple terms, a digital asset is anything that is stored digitally. Digital assets may include emails, photographs, blogs, websites, electronic documents, cryptocurrency, and content uploaded to social media accounts. Some digital assets may only have sentimental value, whereas others may have significant monetary value. In some circumstances, it may not even be a digital asset at all but rather a licence to use a service.

What Happens to These Digital Assets on Your Death?

At present, access to a person’s digital assets is largely determined by contract and user agreements. For example, some social media platforms will deactivate an account after no access for a certain period. Others may provide the option for an account to be memorialised.

There are currently no laws in Australia that expressly outline what happens to a person’s digital assets on their death. Ultimately, this is entirely dependent on the provider concerned and the user agreement in place which often sets out what is to happen to the digital asset after death.

It is important to note that some digital assets such as cryptocurrency do require prior planning on behalf of the deceased for access to those assets to be granted after death. Cryptocurrencies often rely on access keys or passwords to access the wallet and trading platform, with no alternative access methods generally being available.

How Can I Ensure My Digital Assets Are Transferred to My Loved Ones After My Death?

There are several issues that need to be considered when providing instructions in relation to your digital assets. We recommend that your digital assets be considered as part of your overall estate plan.

To assist your executor and loved ones, you should make a list of your digital assets and consider what you would like to happen with those assets after your death. It is critical for your executor to be able to easily identify and access your digital assets. You may even wish to consider maintaining a register (hard copy or digital) of your digital profile, the services used, and your usernames and passwords used to access such accounts.

Now more than ever, people need to be aware of their available options when considering their estate planning. This certainly now also extends to options regarding digital assets.

Contact our estate planning team today to discuss your options further and receive advice tailored to your particular circumstances.

The Bank of Mum and Dad Needs A Paper Trail

The Australian Financial Review recently reported (8-9 May 2021) that parents are now among the nations’ top 10 lenders for home loans with data showing more than 60% of first home buyers are receiving assistance from their parents to purchase their first home.

Unsurprisingly with the world in the middle of a pandemic and the economy in recession, now more than ever, children are turning to their parents for financial assistance. It is incredibly important that prior to parents providing financial assistance to children, parents must first be clear on whether the assistance is to take the form of a gift or loan.

The distinction between the financial assistance provided being a gift or loan becomes incredibly important in the following scenarios:

  • the child’s relationship breaks down and their spouse alleges that the financial assistance was a gift rather than a loan;
  • the parents pass away and their Executor is left to determine whether or not the financial assistance is to be repaid to the Estate;
  • a sibling makes a claim for further provision from the parents’ Estate on the basis that the child has already received financial assistance during their lifetime;
  • the child becomes bankrupt and the trustee in bankruptcy classes the financial assistance as an asset as opposed to a liability;
  • the relationship between the parents and child breaks down;
  • the parents are receiving a Centrelink pension which may be affected by providing the financial assistance to the child.

In the above scenarios, it is generally the parents or their Executor who bear the onus of proving that the financial assistance was a loan rather than a gift. Often the only written evidence available is the bank transfer, with the only other evidence being verbal communications resulting in a “he said, she said” argument.

Disputes of this nature can so easily be avoided by first consulting with a Solicitor to create a paper trail and have a properly prepared and executed loan agreement in place.

If you or someone you know of are considering providing financial assistance to a child or any other person, please contact our office to make an appointment to meet with one of our experienced Solicitors. We are also able to advise on any existing arrangements that have not yet been documented. 

Family Law: Lawyers and the Bank of Mum and Dad

laywer with couple and paperwork

Why is it important to know about Lawyers & the Bank of Mum and Dad? The Australian Financial Review reported (8-9 May 2021) that parents are now among the nations’ top 10 lenders for home loans.  Remarkably, data shows more than 60% of first home buyers are getting assistance from their parents to get into their first home.

How should the families concerned, mum and dad and their adult child and possibly their child’s partner, document such financial assistance?

Binding Financial Agreement (BFA)

What about a Binding Financial Agreement (BFA) for the happy couple, each requiring their own separate lawyer for advice? Another newspaper (The Australian) the same weekend carried comment from family lawyers recommending BFAs where there are Mum and Dad loans.   

A BFA might provide that in the event of a separation of the couple, the loan from Mum and Dad be repaid, or not, and by whom, but is a BFA is the right solution?    

Remarkably, no one knows how successful BFAs are for most couples.  There is no record of the numbers of BFAs done in Australia. The University of Sydney (UTS) has in April 2021 Family Law Section Newsletter invited lawyers to take part in a project involving academics from several universities to gather data and report about BFAs.   

In the 20 plus years since BFAs were first permitted there has been significant litigation between the couples to the BFA and sometimes including their lawyers, that ironically BFAs are intended to prevent.    

A more immediate solution could be a formal contract between the Bank of Mum and Dad and their adult child and possibly their child’s partner, as to the terms of the loan.  Some of the loans will be ‘gifts’ and/or required to be gifted as part of the deposit requirements for the primary housing loan, so what happens then? On any basis, financial planning and legal advice should be considered by all parties.  

Our Family Law team at Bowen Buchbinder Vilensky has the skills to assist our clients to negotiate this complex system and navigate through Lawyers & the Bank of Mum and Dad. 

To book an initial consultation with one of our experienced family lawyers, please get in touch. Alternatively, to get started online now, visit the BBV Legal Online System where you can enter your relationship details and receive information that is free, instant, personalised and helpful.

When Does Your Resignation As A Director Become Effective?

Can A Director’s Resignation Be Backdated?

There are over 2000 laws and regulations in Australia that impose personal liabilities on Directors of both private and public companies.  These laws and regulations range across areas as diverse as taxation, superannuation, occupational health and safety, insolvency and consumer law.

For these reasons, it is important that when a person resigns as a Director of a company for whatever reason, such resignation is done properly in order to be effective.  Failing which a Director can remain personally liable for a range of obligations and liabilities even after they believe they have resigned their position.

Recent amendments to the Corporations Act which came into effect on 18 February 2021 have put into sharp focus the need for resigning Directors to ensure that the appropriate paperwork is prepared and that the Australian Securities and Investments Commission (ASIC) is properly and promptly notified. 

Under the recent amendments a Director’s resignation will now take effect on:

  • The date that the person ceased to be Director (which requires a formal letter of resignation) if ASIC receives notice of the resignation within 28 days of it occurring; or
    • The date the notice is received by ASIC, if ASIC receives notice of the resignation more than 28 days after it has occurred.

It is also worth noting that if the resignation of a Director will leave the company without at least one Director it will not take effect.

When a Director resigns the company is required to notify ASIC within 28 days of the resignation occurring.  This is done by filing with ASIC an appropriate Form 484 which can be completed online.  This is normally attended to by the company secretary or the external accountants of the company.  Prior to the amendments coming into effect, if the company failed to lodge the notification with ASIC within 28 days it was liable only to pay a late lodgement penalty, however, the resignation was still effective from the date of the letter of resignation irrespective of when ASIC was formally notified. 

Now, a resignation as a Director will not take effect unless and until ASIC is notified.  This prevents the improper backdating of Director resignations and ensures companies are not improperly left without Directors. 

Importantly, persons who resign as Directors remain exposed to liability after their resignations unless ASIC are notified within 28 days.  Until ASIC are notified the Director resignation is not effective and the exposure continues.

For these reasons the importance of proper company processes which include the prompt notification to ASIC cannot be underestimated.

For professional advice from our team of Commercial Lawyers in Perth, please contact David Vilensky, Les Buchbinder or Alana Shaddick on 9325 9644.

AMICA – Can A.I Replace Family Lawyers?

Amica is a new initiative supported by the Australian Government. It is designed to assist couples to resolve their parenting and/or financial issues following separation. It is a great initiative for couples who can “get along” as they come apart.  For others, it is less helpful.

According to the website, Amica:

  • provides separating couples with a user-friendly platform to work out and record parenting arrangements that work for their family.
  • uses artificial intelligence to make suggestions about dividing money and property (considering legal principles) based on the information that is entered by the parties.

The website claims that Amica “should suit most separating couples”.  These are some of the situations listed where Amica is not going to be suitable:

  • There is a Family Violence Restraining Order in place between the parties.
  • A limitation period will expire in the next 3 months.
  • There is a genuine dispute about the validity of the relationship.
  • One of the parties to a relationship or marriage is on a visa or seeking a visa which is dependent on their relationship with their partner.
  • There are any existing court orders in place about parenting arrangements for any children of the relationship.
  • There are ongoing cases or allegations in any court involving family law, child support, family violence or child welfare that involve either parent, or a child of the relationship.
  • One of the parties wishes to relocate with a child of the relationship.
  • Either party wishes to divide superannuation.
  • There are any genuine disputes over what is included in the property pool.
  • Any property of the relationship has been disposed of (such as sold or transferred) without consent of both parties.
  • There are caveats or charges lodged over any property in the property pool.
  • Assets in the property pool are held in a company or trust.
  • One party is a director of a company that forms part of the property pool.
  • Where either party owns or partly owns property or other assets overseas.
  • The property pool includes property which is also owned by a third party.
  • Either party currently has bankruptcy proceedings against them, or if either party was bankrupt during the relationship, or if either party is an undischarged bankrupt.

While Amica appears to be a great initiative, it is not the end of family lawyers by AI.  Amica does not give legal advice. In our experience, it is very rare to encounter a matter which does not involve at least one of the complicating factors listed above, making Amica unsuitable for most separating couples.

Importantly, even if a separating couple can reach agreement using Amica, it is not legally binding. All information exchanged between parties is done so on a “without prejudice” basis, meaning the information disclosed via Amica cannot be used in Court proceedings.  

Here at Bowen Buchbinder Vilensky, we encourage our clients to reach an amicable resolution to their family law issue, whether it be divorce, parenting arrangements or property division.

To book an initial consultation with one of our experienced family lawyers, please get in touch. Alternatively, to get started online now, visit the BBV Legal Online System where you can enter your relationship details and receive information that is free, instant, personalised and helpful.

Family Law: A Complex And Private Legal System

lawyer with couple at desk

In Australia all separating couples, are subject to a family law system that is both “bifurcated” and private. 

We can read about Angelina Jolie and Brad Pitt’s divorce and separation process in the media, and learn that in California Angelina and Brad are subject to a “bifurcated” legal system. But you will not usually learn details about local celebrities’ divorce settlements.

The fact of a separation or divorce and general details can be published but that is because it is not about family court litigation or “proceedings”.  

Section 121 of the Australian Family Law Act makes it an offence to publish details of separating couples’ court cases.    

Sometimes when media outlets have sought permission, the Court grants leave for the publication of details concerning a case, or the Court itself directs publication when pseudonyms rather than the real names of the parties are used.  On other occasions, real names are necessary, for example, if there is a missing child.

The embargo on publication means not only can details about a family law case NOT be published in the media but also NOT on social media. 

A bifurcated divorce in California means “they are legally divorced, but are yet to decide on child custody and financial arrangements”.

In Australia, the Family Law Act provides that a person can apply to the court (or negotiate a settlement without going to court) as soon as they separate, but can only apply for a divorce after 12 months has run.

That is how a bifurcated system operates, where the processes are separated into separate branches or parts.  In Australia there are three parts to the system, including a separate child support system.

Services Australia Child Support decides financial obligations for children after separation, separately from Family Court property settlement and spousal maintenance.  Spousal maintenance (rarely used in the 21st Century) is usually resolved at the same time as property settlement. Spousal maintenance can be obtained and very rarely, after property settlement.

Divorce (the right to remarry without committing bigamy) often follows later, after the hard work of financial settlement and arrangements for the children has been done. 

This complicated system is private, to protect the individuals and families involved. 

People can take steps and make decisions or seek legal process to assist them, using those parts of the system that they need at that time.  But there are pitfalls that require experience and expertise in family law to negotiate.

The confidentiality of the system means that general public knowledge of family law in Australia is limited, scattered and often ill informed.

Our team at Bowen Buchbinder Vilensky has the skills to assist our clients to negotiate this complex system as best suits them.   

Avoid Being a “Botched” Victim When It Comes to Family Law Advice

Frustrated couple refusing to sign contact containing 'botched' family law advice

I do not know whether you have had the fortune, or misfortune as the case may be, to watch an episode of the reality TV show “Botched”. 

“Botched” follows the daily professional lives of 2 plastic surgeons in Beverly Hills who specialise in fixing up botched jobs done by less experienced and incompetent plastic surgeons.  In other words, all of their patients are former patients of other plastic surgeons and many are disfigured from procedures that have gone horribly wrong.  Hence the title of the reality show.

“Botched” reminds me of the family law practice of Bowen Buchbinder Vilensky (“BBV”).  Many of our clients have been the clients of sometimes, two or even three, other law firms before they eventually end up at BBV.  By the time these new clients come to our experienced and competent family law team, they are very often demoralised, low on funds and have completely lost faith in the legal system insofar as it relates to family law matters.

The lesson for potential clients seeking advice in family law is to avoid being a “Botched” victim.  That is, get good quality advice early in the process from experienced and competent family law lawyers who understand the process and will point you in the right direction from the outset.  This is a specialty of BBV.  The financial benefits of being in good hands early cannot be overestimated.

Put simply, start with the right family law lawyer to avoid having to change lawyers midstream to unwind bad legal or strategic advice provided by inexperienced lawyers.  Avoid wasting time and resources on bad legal advice.

As managing director, I could not be prouder of the family law team working at BBV.  I observe them at work every day.  They are ethical, experienced, passionate, empathetic and highly competent.  Further, they will work on a fixed fee basis so that clients know in advance what fees will be incurred. 

May I share with you a very recent testimonial provided by a satisfied client of the firm on whose behalf we concluded a rather complex family law matter:

            “You and your firm have been my saviour when it comes to sailing the treacherous waters of divorce, consent orders and paperwork. I cannot thank you enough for your advice, thoroughness and organisation. You were understanding, compassionate and have amazing patience.

Words cannot explain my feelings and I am forever thankful.”

If the producers of “Botched” were looking to do a similar series based on the legal profession, they could use the family law team at BBV as the practitioners fixing up the botched jobs caused by less experienced lawyers.

PLEASE CONTACT

If you would like advice in this area please contact David Vilensky at dvilensky@bbvlegal.com.au 

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Too Bad To Stay, Too Good To Leave

Upset couple sitting separately as they consider separating

The media has been reporting that couples have found the Covid-19 impact hard on their relationships.  Others might have found that there has been an improvement in some ways, because they have endured unexpected challenges together.   In Western Australia at least, we seem to be coming out the other side.

Pandemic or no pandemic, you might be unsure about whether your relationship is “good enough”. 

As family lawyers, we often see clients who did not see separation coming.  When that happens without any warning, that can be most devastating.

Other clients come for legal advice before they have separated, when they are still living “under the same roof”. In those circumstances we can help at the front end and give advice that can potentially benefit everyone involved, while our first duty is to our client.

Separating does not increase what you have to share between you.  In fact, assets can be depleted because costs which were previously shared such as mortgage payments or rent and utility bills, are now payable for two residences. However, if you can reach an “amicable” settlement you will spend the money that has to be spent to sort things out and no more.

Only you can decide if you should stay in a relationship.  Despite what is said sometimes in the media about people not regarding their marriage vows with the seriousness that they were taken in the past, our experience is that none of our clients have come to consider ending their relationship lightly. 

Usually by the time a client decides to see a lawyer they have spent time beforehand deciding that this is what they must do. 

A useful book that is readily available that a person unsure about their relationship might find useful to read (and there are others) is Too Good to Leave Too Bad to Stay by Mira Kirstenbaum.  It was published some years ago and is a little dated but many people say they have found the approach that it provides to be useful.  Reading a “self-help” book can be invaluable, but it is not a substitute for professional help about relationships.

If you are ready to take the step but still unsure, getting professional advice, concerning your relationship and also legal advice, is likely to be very much in your interests.   

At Bowen Buchbinder Vilensky a first appointment without any obligation to proceed further costs $440 including GST. 

PLEASE CONTACT

If you would like advice in this area please contact Rhonda Griffiths at rgriffiths@bbvlegal.com.au 

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Separation Under One Roof

Frustrated couple experiencing 'separation under one roof'

Thanks in large part to the COVID-19 pandemic, the Western Australian economy is expected to experience a recession in the 2021 financial year.

With increased unemployment rates, and house prices falling over the last 5 years,[1] there will likely be an increasing number of newly separated couples who will have little choice financially but to remain “separated under one roof”, at least for a time.

 

Why Does the Date of Separation Matter?

The date of separation between a couple can be relevant for several reasons. 

For de facto couples, it can be the difference between the Family Court of Western Australia having, or not having, jurisdiction to make orders for property adjustment and maintenance.  For the Court to have such jurisdiction, it is generally a requirement that the de facto relationship has existed for 2 years.[2] 

It is also relevant to the limitation period for de facto couples, who generally must commence proceedings in the Family Court within 2 years after their relationship ends.[3]

For married couples, a divorce can only be granted where the marriage has irretrievably broken down.  To show that the marriage has irretrievably broken down, the parties must have separated and lived separately and apart for a continuous period of at least 12 months, immediately before filing the application for divorce.[4]

 

Separation Under One Roof

Section 49 of the Family Law Act 1975 (Cth), which applies to married couples, provides as follows:

  • The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of only one of the parties.
  • The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

 

Are We Separated?

Whether there has been a separation under one roof will be a question of fact which is decided on the facts of each case.  As with many areas of law, it is not black and white, and the circumstances of each individual relationship will be considered.

For separation to occur between a married couple, one or both spouses must form an intention to sever and not resume the marital relationship, and act on that intention.[5]

The body of case law involving separation under one roof indicates that a comparison of the state of the relationship before and after the alleged separation may be required.[6]  The following factors may be relevant (to both married and de facto couples) in such an analysis:

  1. Whether one or both of the parties communicated to each other that they considered themselves to be separated.
  2. Whether the parties have continued to share a bedroom, and the extent to which any sexual relationship has been maintained.
  3. Any change in the financial relationship between the parties, for example the closure of joint bank accounts.
  4. How and when the separation was communicated to friends and family of the parties, and whether the parties have continued to hold themselves out to be a couple.
  5. A reduction in shared activities.
  6. The extent to which the parties have continued to perform domestic chores for the benefit of the other, such as cooking, cleaning, and laundry.
  7. The reason why the parties have remained residing under the same roof (e.g. financial pressures).
  8. Whether any government departments, such as Centrelink, have been informed about the separation.

 

What Next

If you consider yourself to be separated under one roof and require legal advice as to divorce, property settlement or parenting matters, please contact Bowen Buchbinder Vilensky for an initial consultation.

 

Disclaimer:  This article is intended to provide general information only and does not constitute legal advice. The article is in summary form and we recommend you seek legal advice or other professional advice as to whether and or how the information is applicable to your circumstances.

[1] https://reiwa.com.au/uploadedfiles/public/content/the_wa_market/house-prices-2013-web.pdf

[2] Family Court Act 1997 s 205Z(1)(a)

[3] Family Court Act 1997 s 205ZB(1)

[4] Family Law Act 1975 s 48(2). See also s 50(1).

[5] Pavey & Pavey (1976) FLC ¶90-051, citing Todd & Todd (1976) FLC ¶90-008.

[6] Todd & Todd (1976) FLC ¶90-008

PLEASE CONTACT

If you would like advice in this area please contact Kori O’Meehan at komeehan@bbvlegal.com.au
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