Shannon Mullins, Author at Matti Lamb & Associates

Enduring powers of attorney explained

A lot of people have heard of a Power of Attorney; however, most do not fully appreciate the extent of its power, the benefits it can deliver or the types of Powers of Attorney that exist.

In this article we examine why appointing a Power of Attorney is often recommended by lawyers and explain the difference between a General Power of Attorney and an Enduring Power of Attorney. The information relates to South Australian law and is not a substitute for legal advice. For advice tailored to your specific circumstances, please consult an experienced legal professional.

Power of Attorney – overview

A Power of Attorney is a useful legal document used to allow someone to handle your financial and legal affairs in a variety of circumstances. It is often used if you are planning to go overseas, taking an extended holiday, suffer from poor health, have an accident or reach a stage in your life when you need greater assistance managing your financial affairs.

Powers of Attorney in South Australia deal with financial and legal decision‑making only, not personal, lifestyle or medical decisions. Separate documents, such as an Advance Care Directive and guardianship arrangements cover personal, lifestyle or medical decisions.

Selecting a person to act in your place

The appointment of your Attorney enables that person (or people) to act in your place and do certain things you would normally do yourself, such as signing documents, paying bills and banking. The person you choose has the right to stand in your shoes and make decisions regarding your financial and legal affairs.

Given the power of such an appointment, it is critical that you select the right person to act in that capacity. The person does not have to be a lawyer. It is important for the person to know you well and for you to trust them. It is often a trusted family member, but whoever it is must be over 18 years and have the ability to manage financial matters responsibly.

The difference between a General and an Enduring Power of Attorney

Not all Powers of Attorney are the same.

A General Power of Attorney is a legal document that gives the Attorney the authority to act on certain financial and legal matters on behalf of the person who appoints them. This power lasts only for as long as the person who appoints them has legal capacity. The general power ceases to operate if the person that has made the Power of Attorney loses capacity to make decisions. A General Power of Attorney is often used as a tool of convenience. For example, a person might appoint a General Power of Attorney to look after their financial and legal affairs in Australia while they travel overseas.

An Enduring Power of Attorney is similar, except that the power continues, or “endures”, in the event the donor (the person making the power) later loses legal capacity, provided the document is made in the correct enduring form.

In South Australia, an Enduring Power of Attorney must be made in the prescribed form and properly witnessed by an authorised witness (for example, a legal practitioner or Justice of the Peace), who should be satisfied that you understand the nature and effect of the document before you sign it.

It is important to be aware that an Enduring Power of Attorney becomes void when you die. At that point, control of your estate passes to your executor or, if there is no will, to an administrator appointed by the court.

When does the Attorney’s power begin?

You may nominate when your Attorney’s power is to begin. If you do not name a date or an occasion, it generally begins immediately once the document has been properly signed and witnessed.

Alternatively, you can specify that an Enduring Power of Attorney is only to take effect if you later lose legal capacity, for example after a doctor confirms that you can no longer manage your financial affairs and make financial decisions.

It is important to note that even if you give your Attorney power immediately, you may also continue to make decisions yourself while you are able to do so. By providing a Power of Attorney you do not restrict or give up the right to make financial decisions as you do today, unless and until a tribunal or court orders otherwise.

You may revoke a General or Enduring Power of Attorney at any time while you still have legal capacity, by signing a revocation document and notifying your attorney and relevant institutions (such as banks) of the revocation.

What happens if you lose capacity without having a Power of Attorney?

The probability that someone can lose capacity is often not considered. However, if you become legally incapacitated and are unable to manage your financial affairs and no longer understand the effect of an Enduring Power of Attorney, it will be too late to have a lawyer prepare one.

No one has an automatic general right to manage your assets if you lose capacity, even a husband or wife, beyond what they can do in their own name or under existing joint arrangements. This can have a significant effect on financial decision‑making with respect to your bank accounts, home, shares or other jointly owned assets or liabilities.

To have decisions made in these circumstances usually involves an application to the South Australian Civil and Administrative Tribunal (SACAT) for an administration order.

The applicant, usually a family member, would apply to become your financial administrator. This is subject to that person being considered a suitable (“fit and proper”) person to manage your affairs. If no suitable person is available, or in some cases even where there is a willing family member, SACAT may instead appoint the Public Trustee or another appropriate administrator to manage your affairs.

If the Public Trustee is appointed, your spouse or other family members may need to consult with a government agency to deal with your ongoing financial affairs until your death, and fees may be charged for this service.

SACAT or an administrator appointed by SACAT can, in some circumstances, vary or revoke an existing Enduring Power of Attorney if that is in your best interests.

Summary

Today Powers of Attorney are often used as a precautionary step by sensible adults, not just a stop‑gap measure for an overseas trip. Professionals such as accountants, financial planners and lawyers often recommend that their clients of all ages and walks of life make a Power of Attorney to ensure their assets are not effectively locked up if they lose legal capacity and to minimise stress on their loved ones.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on (08) 8155 5322 or email [email protected].

Common mistakes to avoid when buying property

Buying or selling a home is one of the biggest financial decisions you’ll ever make. While it’s an exciting time, the legal side of the process, known as conveyancing, can be complex and full of potential pitfalls. A simple mistake can lead to costly delays or even a collapsed deal.

Knowing what to look out for is the best way to ensure your property transaction goes smoothly. Here are some common conveyancing mistakes people make and some practical tips on how to avoid them.

1. Not Getting Your Finance Sorted Early

This is a mistake that can derail a purchase before it even begins. Many buyers get caught up in the excitement of finding their dream home and make an offer without having a solid loan pre-approval in place.

The Problem: Your offer might be accepted, but if your finance falls through later, you could lose your initial deposit and face penalties for breaching the contract. In some cases, a contract becomes unconditional as soon as it’s signed, especially in an auction setting where there is no cooling-off period. If you can’t secure the funds, you’re in a very difficult position.

How to Avoid It: Before you start seriously looking for a property, speak with a mortgage broker or your bank to get a formal loan pre-approval. This gives you a clear budget and allows you to make offers with confidence. If necessary, talk to your conveyancer or lawyer about adding a “subject to finance” condition in the contract.

2. Skipping the Due Diligence

The phrase “let the buyer beware” is a core principle when it comes to buying property. This means it’s your responsibility to be satisfied with the property before you buy it. Skipping crucial checks to save a little money can be a very expensive mistake in the long run.

The Problem: You might buy a home only to discover serious hidden issues, like a major termite infestation, a cracked foundation, or illegal building works that need to be torn down. These issues can be incredibly costly to fix and can significantly reduce the property’s value.

How to Avoid It: Checking zoning regulations and building compliance, verifying property boundaries, and arranging professional building and pest inspections all form part of the due diligence process. For apartments, townhouses, or units, a strata report is essential to uncover any issues with the body corporate, such as large debts or upcoming special levies for major repairs. Your conveyancer or property lawyer will also conduct essential searches, such as checking the title for easements, covenants, unpaid rates, or undisclosed interests from government authorities.

3. Misunderstanding the Contract of Sale

A standard contract of sale is a comprehensive legal document, often filled with complex terms and special conditions. Many people sign it without fully understanding what they’re agreeing to.

The Problem: You could be locked into a contract that has conditions you don’t agree with or that puts you at a disadvantage.

How to Avoid It: Never sign a contract of sale without a professional review. The role of your conveyancer or lawyer is to read every clause and explain your obligations in plain language. They will identify potential risks and can sometimes negotiate with the seller’s representative to have unfair clauses removed or amended before you sign.

4. Leaving Things to the Last Minute

Conveyancing has strict deadlines and a specific sequence of events. Delays in one area can cause a domino effect, pushing back settlement and potentially costing you money.

The Problem: Failing to sign a document or pay the deposit on time can jeopardise your purchase. Similarly, if you don’t coordinate with your bank, you could miss the settlement date, resulting in costly penalty fees or, in more severe cases, contract termination and consequential legal action.

How to Avoid It: Stay organised from the get-go. As soon as you have a signed contract, provide all necessary documents to your conveyancer and lender promptly. Keep an open line of communication with all parties involved and respond to requests for information as quickly as possible.

5. DIY Conveyancing

DIY conveyancing has become even more complex with the advent of electronic conveyancing, which is effectively a closed system where only accredited entities can participate. Doing your own conveyancing is not a decision to be taken lightly. The process is full of legal complexities and risks that can be difficult for someone without legal training to navigate.

The Problem: You could miss a critical search, fail to identify a problematic clause in the contract, or make a technical mistake on a legal document.

How to Avoid It: Engage a reputable licensed conveyancer or a property solicitor. Their fees are a small price to pay for the peace of mind that comes from having an expert on your side who is insured and has a deep understanding of the legal requirements for property transactions.

Key Takeaways

Sort out your finances first. Get pre-approval before you start shopping.
Do your research. A building and pest report is a non-negotiable step.
Get expert advice. Don’t sign a contract until a professional has reviewed it.
Stay on top of deadlines. Timely communication and organisation are key.
Don’t DIY. A qualified conveyancer or property solicitor is a vital part of your team.

By being proactive and seeking professional guidance, you can navigate the conveyancing process with confidence and avoid these common and often costly mistakes.

Where do the children live after a family breakup? Negotiating parenting plans

Separation and divorce are a reality for many Australian couples. When children are involved, the impact on the family can make the aftermath of a breakup even more overwhelming. Parents will often be anxious about how children’s care arrangements will play out immediately after separation, and in the long term.

Making a parenting plan that outlines where the children will live and how parents will share responsibilities is a step that parents can take to help provide clarity and minimise additional stress and anxiety.

What is a Parenting Plan?

A parenting plan is a written agreement between separated parents that outlines how they will raise their children moving forward. It’s a roadmap for co-parenting, detailing where the children will live, who makes decisions about their upbringing, how parents will communicate about important issues regarding their children, and how they will resolve disputes. While parenting plans are not legally required or binding, they can help provide stability and structure for children after separation. Parenting plans can also be made into legally binding consent orders by application to the court.

Key Components of a Parenting Plan:

Living arrangements: This is often the most contentious aspect. Options include:
Primary residence: One parent becomes the primary caregiver, and the children live with them most of the time. The other parent has regular contact, such as weekend visits, holidays, and special events.
Shared care: Children spend significant time with both parents, often on a near-equal basis. This could involve week-on-week-off arrangements or more complex schedules.
Birdnesting: Less common, this involves the children staying in the family home, and the parents taking turns moving in and out.
Decision-making: The plan outlines who is responsible for major decisions regarding the children’s lives, such as education, healthcare, and religious upbringing. This can be shared equally or allocated to specific parents for different areas.
Communication and dispute resolution: A good plan includes strategies for effective communication between parents and mechanisms for resolving disagreements, such as mediation or counselling.

What Does the Law Say?

In most cases, it is best if parents can agree on the post-separation arrangements for their children. If an agreement cannot be reached, they may need to ask a court to determine these issues.

In family law cases, courts decide on the allocation of parental responsibility on a case-by-case basis with the paramount focus being the child’s best interests. In determining what orders to make, the Family Law Act 1975 provides that the court consider some core factors which include:

The arrangements necessary to promote the safety of the child and all individuals responsible for the child’s care.
Any views expressed by the child.
The child’s needs, encompassing developmental, psychological, emotional, and cultural aspects.
The capacity of each person with parental responsibility, whether current or proposed, to meet the child’s developmental, psychological, emotional, and cultural needs.
The benefits to the child in having a meaningful relationship with their parents, and people significant to the child.

A court may consider any other factors that it deems relevant to the specific circumstances of the child. Additionally, the court must consider the child’s connection to ‘family, community, culture, country, and language’ when determining what is in the best interests of Aboriginal or Torres Strait Islander children.

*These recently introduced provisions remove the presumption of ‘shared parental responsibility’ which no longer operates. They apply to children in Australia whether or not their parents are, or were married, but not currently to children of unmarried parents in Western Australia. It is, however, anticipated that the Western Australian government will amend legislation so the provisions will apply to children of de facto parents.

Considerations when Negotiating a Parenting Plan

While there is no one-size-fits-all answer to making parenting plans, the children’s best interests, as determined in the Family Law Act, should be paramount. Making a workable parenting plan requires a cooperative approach between parents with the children’s welfare at the forefront of negotiations. A mediator or family dispute resolution practitioner can help parents agree on implementing effective plans that work for everyone. It is important to remember that parenting plans are not set in stone and can evolve as children grow and circumstances change.

Practical considerations when negotiating arrangements for children include:

Child’s age and development: Routines and needs typically change from infants to toddlers through to older children.
Each parent’s capacity to provide care: This includes factors like emotional stability, financial resources, and availability to meet the child’s needs.
Existing routines and attachments: Maintaining continuity in the child’s life, such as schooling, extracurricular activities, and relationships with friends and extended family, is important.
Parents’ work commitments and location: Practical considerations like work schedules and the distance between parents’ homes play a role.
Child’s wishes: Depending on their age and maturity, children’s views and preferences may be taken into account.
Family violence: In cases involving family violence or abuse, the court prioritises the safety and well-being of the child and protective parent.

Making Parenting Plans Work

Creating a parenting plan is just the first step. Successful co-parenting requires ongoing effort and commitment from both parents. In addition to always prioritising the child’s best interests, other practical tips can help.

Communicate effectively: Maintain open and respectful communication with the other parent, even if doing so is challenging.
Be flexible and willing to compromise: Life throws curveballs – parents’ and children’s schedules can change at the last minute. Being willing to accommodate such changes to address unforeseen events is crucial.
Communicate with your children: Try to remain calm and positive when dealing with challenges and changes. How you explain unforeseen events to your children will depend on their age, level of maturity and the circumstances.
Seek professional support: Mediators and family therapists can help parents navigate conflict and develop effective co-parenting strategies.
Review and adjust the plan: Anticipate that parenting plans may need to change and be prepared to renegotiate as your children grow and circumstances change. You may need to review and update the parenting plan to ensure it remains relevant and in the child’s best interests.

Conclusion

Parenting is challenging at the best of times let alone following a separation. Still, it is important to remember that even after separation, both parents play an important part in their child’s life. While it may be tough working out the practicalities of a co-parenting arrangement, it is worth pushing through the difficulties to reach an agreement that is in the best interests of your children.

Choosing a Personal Injury Lawyer to Manage Your Compensation Claim

Suffering a personal injury can be a distressing and life-altering experience. Whether your injury is a result of a car accident, medical negligence, workplace incident, or any other circumstance, it is often necessary to pursue a compensation claim to safeguard your future.

In Australia, navigating the legal complexities of personal injury claims can be challenging without proper guidance. This is where a skilled and experienced personal injury lawyer is invaluable. Choosing the right lawyer to manage your compensation claim is a critical decision that can greatly impact the outcome of your case.

Role of the Personal Injury Lawyer

A personal injury lawyer specialises in handling cases where individuals have suffered physical, emotional, or financial harm due to the negligence or wrongful actions of another party. Their expertise extends to evaluating the prospects of succeeding with a claim, gathering evidence, negotiating with respondents, and representing clients in court if necessary.

The first step of your compensation claim is an initial consultation with a lawyer. During this initial consultation, you will need to provide details about your injury and the relevant circumstances. The lawyer will evaluate the merits of your case and discuss potential strategies.

If you decide to proceed with the claim, the next step will be for your lawyer to gather evidence, including medical records, accident reports, witness statements, and any other relevant documentation. The aim of this phase is to ensure that there is adequate evidence to support your claim. Your lawyer will calculate what is a fair amount that compensates you adequately for your injuries. Your lawyer will also be aware of any statutory limitations that apply and can ensure that you initiate proceedings before you run out of time.

When possible, your lawyer will engage in negotiations with the respondent, which usually involves discussions with their insurance company. If negotiations fail to yield a satisfactory outcome, your lawyer may initiate legal proceedings in a relevant court or tribunal. This step is usually taken when a court trial is necessary to achieve a just resolution.

Fortunately, most personal injury cases are settled before going to trial. When a trial is necessary, your lawyer will represent you in court, presenting evidence and arguments to support your claim. If successful, you could receive compensation for medical expenses and lost wages, future medical expenses and costs, loss of future earnings, and the pain and suffering you have endured.

Factors to Consider When Choosing a Personal Injury Lawyer

Choosing the right personal injury lawyer is a decision that can significantly influence the outcome of your compensation claim. Remember that seeking the right legal help is an essential step toward achieving justice and rebuilding your life after a personal injury. Here are seven important factors to consider:

Reputation

You should do your homework before retaining a personal injury lawyer. You can research a lawyer’s reputation within the legal community and among previous clients. Online reviews and testimonials can provide valuable insights into a lawyer’s professionalism, communication skills, and success rate.

Experience

You should look for a lawyer with a significant track record in handling personal injury cases. An experienced lawyer will have a deep understanding of the intricacies involved, ensuring they can effectively navigate the legal process and anticipate potential challenges. While many personal injury cases are settled out of court, it is beneficial to choose a lawyer who is comfortable and experienced in the courtroom. This ensures they can advocate effectively on your behalf, even if the case goes to trial.

Expertise

Personal injury law is diverse. It encompasses areas such as motor vehicle accidents, workplace injuries, medical negligence, public liability, and more. You may benefit from selecting a lawyer who specialises in the specific circumstances surrounding the injury you have sustained, as their expertise will be tailored to the nuances of that particular area of law.

Communication

Effective communication is crucial in any legal matter. Most personal injury lawyers offer a free initial consultation, so you should use this opportunity to gauge whether you feel comfortable working with them. Your lawyer should be attentive, responsive, and able to explain complex legal terms in a way that you can understand. A lawyer who keeps you informed at every stage of the process can provide peace of mind during a challenging time. It is also important to remember that you are likely to be in a vulnerable state after your injury, and you will benefit from having someone on your side who will persevere and make you feel heard and supported.

Resources and Support

Personal injury cases often require a team effort. Ensure that the lawyer you choose has access to the necessary resources, such as investigators, medical experts, and other professionals who can strengthen your case.

Fee Structure

You need to discuss the lawyer’s fee structure during your initial consultation. Many personal injury lawyers work on a “no win, no fee” basis, meaning they only get paid if you win your case. Be clear about any potential fees or expenses that might arise during the process.

Trust Your Instincts

Ultimately, the best advice when it comes to choosing a personal injury lawyer is to trust your gut feeling. Your lawyer will serve as your advocate during a challenging time, making it important to select someone in whom you have confidence and with whom you feel comfortable.

This is general information, and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on (08) 8155 5322 or email [email protected].

Key considerations for controlling business debtors

While growing your business it can become easy to lose sight of effectively managing your debtors, however doing so, can help your business continue to grow successfully.

The information below can help make the task of controlling business debtors much easier!

As always, we recommend you seek legal advice if you have any concerns.

Have terms of trade in place before extending credit and know who is behind the business

Make sure you put all terms of trade in writing, always! It’s surprising how many businesses still supply goods and services by informal arrangements. Having terms of trade in writing is an effective way of minimising and preventing bad debts arising.

Another important factor is to complete thorough credit history and business reference checks before offering credit to new potential customers. Be upfront of your terms of trade and credit limits and put these in writing. Ensure the new customer signs acceptance of your terms of trade.

If you are unsure as to whether your terms of trade are exhaustive, we recommend you seek legal advice from one of our experienced lawyers.

Know who owes the money – do an ASIC search

It is vital to perform background checks on potential customers before commencing a business relationship with them.

The only way to know whether a business you want to deal with is in administration, liquidation or deregistered is on ASIC Registers. This is an easy and quick way for weeding out any customers that do not have the ability to pay you.

Know the rules about serving letters of demand / statutory demands – time limits, thresholds, and service requirements

We strongly recommend you have a letter of demand template your business can use should the need arise. A letter of demand should include:

accurate information;
a clear intention to commence legal proceedings if you are not paid by a specified time;
attached copies of any relevant supporting documentation.

The letter of demand should be signed and a copy should be kept for your records. We recommend you speak to one of our lawyers who can draft a letter of demand template customised to your business.

You should also be familiar with Section 459E of the Corporations Act 2001 (Cth). This section deals with statutory demands. A statutory demand is a written request for payment of debts owed by an insolvent company. The debt owed must be at least the statutory minimum. This is currently $4000; however, you should confirm the amount before taking any course of action.

A statutory demand requires a debtor to do one of the following:

pay the debt they owe you;
secure or compound for the debt; or
make an application to set aside the statutory demand.

The statutory demand must be drafted in its prescribed form.

The debtor company has strictly 21 days to comply with the statutory demand, otherwise a legal presumption will be raised that the company is insolvent. Once this occurs, you can apply to the Federal or Supreme Court for an order that the debtor company be wound up in insolvency.

You must also satisfy the service requirements of a statutory demand which may be done by leaving the statutory demand or posting to the company’s registered office. You can also deliver a copy of the statutory demand personally to a company director. It is critical that service of the statutory demand is done correctly, and service is evidenced in an Affidavit of Service.

It is obvious from the above that procedures involved in making a statutory demand can be complex. We strongly recommend you seek legal advice to prevent your statutory demand from being set aside.

Educate your credit control team

It is vital that all staff in the credit control team are on the same page when it comes to your business’s credit control policy and procedures. We recommend you have regular meetings to go through credit control policies and what changes need to be made, if any.

It is important to ensure that all staff understand the terms of trade. Taking some time out to ensure all staff clearly understand the terms of trade can prevent unnecessary debt chasing down the track.

We also recommend you hire an expert in credit control to provide training to staff in how to become a better credit controller or outsource your debt control to a debt collection expert.

Keep notes of phone calls, etc. when chasing money

If you find yourself chasing money from a debtor, it is critical to keep a record of phone calls, emails, letters of demand and other documentation supporting your claim. It will also make it easier to keep track of your dispute.

Conclusion

The key to controlling business debtors is prevention! Having clearly written terms of trade and knowing who your debtor is and their history of paying debt, minimises the risk of you having to chase them for money in the future.

Training and educating your credit control staff is also vital to ensure they are on board with the business’s trading procedures and policies and are effective in carrying out these procedures and policies.

Even if you believe you have your business covered with effective debtor control practices, we still recommend you seek advice from an experienced lawyer to give you peace of mind.

Top tips for reducing legal fees in your family law matter

Family law proceedings can become very stressful. The last thing you should be worrying about is exorbitant legal fees. However, your family law fees do not necessarily have to become a burden. We have provided our top 10 tips on ways in which you can keep your legal fees reasonable!

Although family law proceedings can at times be costly, ensuring you get proper legal advice is very beneficial and can help reduce stress by providing you with an understanding of your rights and what’s involved in family law proceedings.

In our experience, having a family lawyer represent you in family proceedings can help you receive a more favourable property settlement outcome compared to parties who represent themselves.

Here are our 10 top tips to help you save money on your family law fees

Get legal advice early

Obtainingadvice early in proceedings is important so that you and your lawyer can come up with a plan on what your matter will involve. At the end of each meeting with your lawyer, ask about the next step in your matter so that you remain up to date with proceedings.

Make a list of questions you want answered before every appointment

Having a list of questions and concerns regarding your matter will result in a shorter appointment time as you won’t need to take time to recall the questions you had planned to ask. It will also help eliminate the need for you to call your lawyer after your appointment to ask the questions you had forgotten. Remember, every time you call to speak to your lawyer, you may get charged! We also recommend you send your list of questions to your lawyer before your meeting so that your lawyer can be prepared.

Take notes of discussions with your lawyer

Taking notes during your meetings and telephone calls with your lawyer will help you recall what was discussed between you, eliminating the need to ask your lawyer the same question twice. This reduces the time spent on speaking with your lawyer and in turn will help reduce your legal fees.

Prepare your financial documents

You will usually be required to provide 12 months’ worth of bank statements, including savings accounts, all mortgage statements, your last three tax returns, and recent payslips, including current superannuation statements. We also recommend sending a request for you and your ex partner’s superannuation fund details as this will provide information to both lawyers about assets and liabilities of the relationship. This will also give both parties an approximate indication of the total value of financial assets. Taking this extra step can save your lawyer time and help reduce your fees even further.

Limit your questions to only legal issues

We empathise that family law proceedings can become stressful and emotional. Your family lawyer will support you to the best of their ability, however, they are only qualified to give legal, not emotional advice. Keep your discussion to legal issues only, this will help keep your meeting shorter and reduce your fees. If you need emotional support, we recommend you arrange an appointment with a counsellor and ask them if you are eligible for free counselling or rebate through Medicare for counselling fees.

Try to remain reasonable when undertaking settlement negotiations

When it comes to family law proceedings, both parties will need to make concessions. It is more productive and cost effective to resolve matters sooner by conceding some issues, which may seem to appear important at the time. Avoid being unreasonable or threatening litigation as a way of punishing your ex-partner. If you continue to be unreasonable or refuse to negotiate with your ex-partner, you will also be punishing your wallet!

Avoid incessantly calling your lawyer

We understand waiting to hear from the other party may be nerve racking, however your lawyer will contact you as soon as possible with any replies from the other party. Constantly calling your lawyer to find out if you have a reply from the other party will only increase your legal fees. If you only have a basic message you want to pass onto your lawyer, it is best to leave the message with their legal assistant.

Provide your lawyer with any information they request

Your lawyer will most likely request written material to prepare court documents (such as information for an affidavit). Providing your lawyer with written material will result in greater efficiency in preparing any legal documentation and as a result, reduced legal fees.

Organise all documents before sending to your lawyer

Before providing your lawyer with any requested documents or information, ensure you organise these documents in chronological order and make a list reflecting all the documentation provided. Providing an electronic version of the list and documents where possible, will also save the law clerk’s time and help keep your legal fees down.

Finally, respond to your lawyer’s requests in a timely manner!

We cannot stress how important this is! Lawyers have deadlines they must meet, including responding to the other side’s requests. If you don’t want to pay extra for your lawyer to keep following up with you or for unnecessary appeals and motions, respond to their requests as soon as possible. You also do not want to give the other side an excuse to claim for legal costs they have incurred because of your delays, so always ensure you respond to your lawyer’s requests promptly.

Conclusion

As you can see, there are numerous ways you can help keep your legal fees as low as possible. Our family lawyers will be happy to discuss and advise you on what you can do to help achieve this throughout managing your matter.

Although legal fees can at times be costly, we cannot stress the value of obtaining legal representation from an experienced family lawyer in the long run, as it can help you receive a more favourable property settlement.

If you know someone who may need assistance or advice on how to proceed please contact us on (08) 8155 5322 or email [email protected].

Buying Residential Property – Understanding Cooling-Off Periods

In the whirlwind of excitement that often accompanies the purchase of a residential property, it is still essential for buyers to be cautious. In most Australian jurisdictions, the law makes provision for a cooling-off period to allow home buyers to evaluate a decision made in the heat of the moment. These periods represent a crucial safeguard in real estate transactions.

In this article, we look at cooling-off periods, their significance, applicability, and operation across different jurisdictions in Australia. The information provides a general overview only and it is important to note that there are various exceptions to cooling-off periods and different rules for each state and territory. Accordingly, you should obtain professional advice relevant to your jurisdiction and the circumstances of the transaction.

Why Have a Cooling-Off Period?

The primary rationale behind cooling-off periods is to afford buyers an opportunity to conduct further due diligence, seek legal or financial advice, and address any concerns that may arise after the signing/exchange of contracts. By providing buyers with a brief reprieve from the pressures of a rapidly evolving property market, cooling-off rights promote informed decision making and help mitigate the risks associated with impulsive or ill-considered purchases.

How Does a Cooling-Off Period Work?

During the cooling-off period, buyers have the option to rescind, or cancel, the contract by providing written notice to the seller or their representative. This notice effectively terminates the contract, and the buyer may be required to pay a nominal penalty fee, typically calculated as a percentage of the purchase price, to the seller. However, it is important to note that conditions and limitations apply in every jurisdiction, such as the timeframe within which the notice must be given, and any specific requirements stipulated in the contract of sale.

When Does a Cooling-Off Period Apply?

Generally, cooling-off periods are only available for private treaty sales, and not for properties bought at auction. There are other exceptions where cooling-off rights do not apply, and it is important to check these with your lawyer or conveyancer before entering a contract. Additionally, the cooling-off period is typically there for the benefit of buyers, not for sellers who change their minds after signing the contract. The specific application of cooling-off periods depends on the circumstances of the transaction and the relevant state or territory legislation.

Further, in some cases, a buyer and seller may agree to waive, shorten or lengthen the cooling-off period by including a term in the contract to that effect.

Cooling-Off Rights Across Australia

In Queensland, a cooling-off period of five business days applies to contracts for the sale of residential property. This period starts the day the buyer (or their representative) receivesa copy of the fully signed contract. The cooling-off period ends at 5 pm on the final day of the cooling-off period.

In Victoria, a cooling-off period of three clear business days applies. This period begins from the date the buyer signsthe contract. The consequence of cancelling the purchase during the cooling-off period is that a penalty of $100 or 0.2% of the purchase price (whichever is greater) will apply.

In New South Wales, buyers of residential property have a cooling-off period of five working days following the exchange of contracts. If the buyer exercises their cooling-off rights, they will forfeit 0.25% of the purchase price.

Likewise, in the Australian Capital Territory, a buyer is entitled to a cooling-off period of five business days. If the buyer rescinds the contract, they forfeit 0.25% of the purchase price to the seller.

In South Australia, buyers have a cooling-off period that starts from when the seller provides the buyer with a Form 1 that sets out important information about the property, including any encumbrances, easements, or other certain legal issues that may affect the sale. The cooling-off period expires at the end of the second clear business day after the form is provided.

In the Northern Territory, a buyer is entitled to a cooling-off period of four business days which commences on the day that contracts are signed and duly exchanged.

The Real Estate Institute of Tasmania and Law Society of Tasmania standard form contract includes an option for buyers to choose a cooling-off period. Buyers must select this option for the cooling-off period to apply. In such cases, they will have three business days from when the contract is made to terminate the contract without penalty. Any deposit paid is refundable.

In Western Australia, cooling-off periods for residential property sales are not an automatic inclusion in contracts. In most cases therefore, buyers cannot change their minds once the contract has been entered. However, they may still negotiate the inclusion of a cooling-off clause in the contract of sale as a condition of their offer. This contractual provision affords buyers similar protections to those provided by statutory cooling-off periods, albeit subject to the terms negotiated between the parties.

Conclusion

Cooling-off periods represent a fundamental aspect of residential property transactions, offering buyers a valuable opportunity to pause, reflect, and reassess their commitment before finalising the purchase. While the specifics of cooling-off periods vary between states and territories, their underlying purpose remains consistent: to empower buyers with the information and flexibility needed to make informed decisions in a rapidly evolving real estate landscape.

By understanding the intricacies of cooling-off periods and their operation, buyers can navigate the property market with confidence, knowing that they have the necessary safeguards in place to protect their interests and secure their dream home.

If you know someone who may need assistance or advice on how to proceed please contact us on (08) 8155 5322 or email [email protected].

Elder abuse

It’s hard to imagine that somebody would harm, intimidate or take advantage of an aged and vulnerable person. Unfortunately, however, elder abuse occurs within our society and sadly, the perpetrators are often those entrusted with caring for our older generation.

Elder abuse can be defined as a single or ongoing act or omission that causes harm or distress to an aged person. Abuse can generally be categorised as:

physical – pushing, shoving, rough treatment or sexual abuse;
neglect – failing to provide adequate necessities and / or maintain hygiene;
psychological – emotional abuse, social segregation, ridiculing and belittling;
financial exploitation – unauthorised use of a person’s property or money.

The conduct causing the harm is usually carried out in circumstances where there is an expectation of trust between the victim and perpetrator who is, ironically, often a caregiver or family member.

According to the Australian Law Reform Commission’s 2017 National Legal Response to Elder Abuse, psychological abuse and financial exploitation are the most common types experienced and, in many cases, these categories co-exist.

Specific examples of psychological abuse include bullying and harassment, treating an elderly person as a child or as somebody lacking intelligence or mental capacity, threatening to send the person to a nursing home or depriving him or her of seeing certain family members or friends.

Financial abuse occurs when a person illegally and improperly uses an elderly person’s financial resources or property for their own, or a third party’s, benefit. This could happen in any number of ways, such as:

misusing a power of attorney and / or making unauthorised withdrawals from a bank account through an ATM or an internet transfer;
depriving an elderly person access to his / her own funds or property;
manipulating an elderly person into gifting or loaning money or transferring assets;
putting a person under duress to include certain provisions in a Will or to change an existing Will;
pressuring a person to give a power of attorney or appointment of enduring guardian.

Identifying abuse

Australian jurisdictions have access centres, helplines and resource units to assist those experiencing or affected by elder abuse as well as tribunals or courts that deal with disputes and issues concerning allegations of abuse.

If you are a victim of elder abuse you can speak with somebody you trust about your concerns, obtain advice from one of these centres, or contact a lawyer.

If you suspect somebody you care about is a victim of elder abuse you should raise your concerns with that person before suggesting a plan to obtain help and move forward.

You may notice an elderly friend or relative becoming reclusive or missing social events, having insufficient funds to pay for necessities or outgoings (particularly when compared with their financial position), suddenly becoming friendly with a new carer or a person showing special interest in the elderly person, hovering around or constantly speaking for that person.

Because the purported abuser is often a relative or somebody presumably close to the older person, it can be difficult and challenging to identify and address cases of elder abuse. It is even more complex if the alleged abuser has been appointed power of attorney for the victim. Sometimes the older person may not even realise they are the subject of abuse as they may be quite dependent on their perpetrator or may have some degree of mental incapacity. In such cases, it is wise to seek advice from a lawyer.

Protecting yourself from elder abuse

The following can help protect you from elder abuse:

Appoint somebody you trust, whether that be a friend or family member, to be your power of attorney and enduring guardian. Talk to your lawyer about the types and scope of power / guardianship you would like to give this person and in what circumstances they may exercise the power. You can appoint different people for different roles, more than one person, or alternate people. Ask plenty of questions and be sure that you fully understand the appointment before signing anything.

Consider putting in place an advance health care directive setting out your wishes and directions regarding your future health care if you become unable to make those decisions yourself.

Do not agree to lend money, or to transfer or mortgage significant assets without obtaining independent legal advice and having the transaction documented in writing. Your lawyer should be independent (not chosen by the person to whom you are lending money). Advice should be provided to you alone and not in the company of the proposed borrower or transferee.

If you decide to gift money, talk to Centrelink or a financial advisor first so you understand the effect this may have on any pension.

Ensure you have a valid Will, that you understand the effect of the Will and you know where the original can be located. Your lawyer can hold the original Will on your behalf without charge and provide you with a copy. Review your Will regularly to ensure it reflects any changes in your circumstances or your choice of executor and / or beneficiaries.

If something doesn’t sound right, there’s a good chance that it isn’t right. Speak up, tell somebody you trust or call a support service.

Conclusion

Elder abuse is a highly-concerning social justice issue and demands further attention and inquiry. Public education, particularly regarding our ability to identify and acknowledge elder abuse, is crucial to ensure these injustices can be addressed and remedied. Older generations should be empowered by learning about the steps they can take to protect themselves and knowing who they can turn to for help.

If you know someone who may need assistance or advice on how to proceed please contact us on (08) 8155 5322 or email [email protected].