Our Exclusive Areas of Practice
All things ELDER LAW
Moving into your later stages of life, can be an overwhelming, confusing and a scary time. At ACL-Law, however, we are committed to making this process as simple, transparent and as smooth as possible. Below is a short rundown on the types of matters ACL-Law can assist you with:
- Retirement Villages, Over 50's Lifestyle Resorts and Aged Care Facility Agreements.
These types of agreements/contracts can be overwhelming and complex. At ACL-Law we aim to take out the complexity of these agreements/contracts and provide you with comprehensive advice in simple English and in terms you understand. Retirement Villages, Over 50's Lifestyle Resorts and Aged Care Facility agreements
are completely different to the traditional buy/sell conveyancing contracts you may have previously entered in to. Traditional conveyancing contacts, grants ownership of the land to the person (or entity) buying the property. Whereas Retirement Village, Over 50s Lifestyle Resorts and Aged Care Facility agreements have peculiar clauses in them which only allows the person entering into the agreement to have a right/licence to occupy the land, they do not actually own the land, although they may be required to contribute to the property rates and water rates. To put it another way, it is like being a tenant for an indefinite period, rather than an owner of the land.
Entering into Retirement Village, Over 50s Lifestyle Resorts and Aged Care Facility agreements can have significant financial consequences not only for you, but, also for your Estate once you pass away. Some agreements prohibit your children (or intended beneficiaries under your Will) from actually acquiring ownership of the property once you have died. Often there are significant financial expenses associated with entering into Retirement Village, Over 50s Lifestyle Resorts and Aged Care Facility agreements as well as ongoing expenses and significant expenses associated with leaving the facility. This is why it is extremely important to obtain expert independent legal advice BEFORE you sign any document.
- Granny Flat Arrangements
Many elder people do not want to be “put in a home” and would prefer to live independently as long as possible. Unfortunately, this is not always possible. However, under the Centrelink concessions, an alternate to being “put in a home” is for the elder person to move in with their family members so they can still have the care and assistance they require although avoiding being placed in a “home”. This arrangement is commonly referred to as a ‘Granny Flat' arrangement.
Ordinarily any moneys passed from an elder person to their adult child would be captured by Centrelink’s gifting rules and could have a significant impact upon the elder person’s aged pension. The Centrelink Granny Flat concessions, however, allows a parent to sell their principle place of residence and pay money to their adult children for the right to occupy the adult child’s home. The money doesn't necessary need to go towards the actual construction of a separate residence for the elder person on the adult child’s land. It could be used as payment for the elder person’s “life interest” or right to occupy the adult child’s home.
To be eligible for the Centrelink Granny Flat concession, strict requirements need to be met. If done properly with the arrangement appropriately documented, Centrelink will usually approve the Granny Flat arrangement and there will no impact to the elder person’s aged pension.
- Centrelink and Department of Veteran Affairs (DVA) entitlements and gifting rules.
Centrelink and DVA have strict requirements and rules when it comes to:
- giving away assets during your lifetime;
- the death of your partner; or
- when you are named as a beneficiary of a deceased’s Estate. While a loved one may have had good and honorable intentions and named you in their Will, however, once you receive this inheritance there may be an unforeseen negative impact upon your entitlements/benefits.
- Elder Abuse
Elder Abuse does not need to be physical or verbal. It can take on many forms which can include financial, sexual, verbal and/or physical. It can be subtle or it can be overtly obvious. Many elder people are either too afraid to speak up about the bad behaviour of their abuser or the abuse is so subtle they are not actually aware of it themselves, until it is too late.
Unfortunately, there are many cases where adult children try to justify their behaviour as the abuser of their elderly parents by saying that they are "just receiving their inheritance early". Elder Abuse is never acceptable regardless of who is the abuser and how they try to justify their behaviour!
If you believe you are being abused or your loved one is being abused, contact our office for assistance, as there are a number of different legal and practical procedures that can be put in place to investigate the suspected activity as well as put a stop to it, before it is too late.
- Power of Attorney advice.
Being appointed as the Attorney of a loved one can be an emotional and stressful experience. This appointment also carries with it a lot of responsibility and pressure. There are strict rules/duties and obligations attached to being someone’s Attorney, and if you do comply with your duties and obligations then you as the Attorney, can be held personally liable for any loss suffered to either the adult or their Estate. BEFORE you undertake any tasks as an Attorney we strongly recommend that you contact us for comprehensive advice on what you must and must not do as an Attorney.
- Applying to the Queensland Civil and Administrative Tribunal (QCAT) for orders relating to an appointment of Administrators and/or Guardians.
Where an adult does not have a valid Enduring Power of Attorney and there is a sudden change in circumstances (e.g. they have a stroke) or they are no longer able to manage their own affairs the same as they used to, then it may be necessary for someone to be appointed as either their Financial Administrator and/or Guardian. This appointment involves an application to QCAT, which can be a very stressful and time consuming process.
The person who is appointed as the adult’s Financial Administrator and/or Guardian can then make decisions specifically about:
(as Financial Administrator)
- buying or selling property;
- maintaining property;
- paying bills;
- making business decisions; and
- managing investments.
- where the adult lives;
- the support services they receive;
- persons with whom they have contact or visit;
- general health care matters; and
- matters of security and safety to prevent potential harm to the adult.
If there is no appropriate person to be appointed Financial Administrator and/or Guardian then the Public Trustee and Office of Public Guardian can be appointed to manage your affairs, however, this is usually a last resort option. At ACL-Law we can assist you in considering your options regarding an appropriate appointment for your loved one as well as assisting you through the QCAT process.
Let us take the burden out of navigating the legal minefield which can be associated with the
later stages of life.
Call us now to see how we can assist you.
All things ESTATE PLANNING
Estate Planning is an integral part of your ability to provide for the ones you love as well as to protect your wealth for future generations.
Everyone over the age of 18 years regardless of their family circumstances and net wealth needs a detailed Estate Plan. Not having the appropriate Estate Planning in place, can lead to unnecessary costs (both financial and emotional) and it can also increase the probability of family disputes over your Estate upon your death. No one wants to see their hard earned money/wealth end up in the hands of Lawyers and in the Court system because of disputing families.
You have the ability now to decide to whom and how you want your wealth is to be distributed. There is no better time than today, to start your Estate Planning! Below is a short rundown on the types of matters ACL-Law can assist you with:
At ACL-Law we pride ourselves on providing you with the very best tools and strategies to put in place now to avoid your Estate being disputed later. Although you are unable to control the ultimate outcome (i.e. controlling beyond the grave) you can put into place a number of wishes, directions and measures to ensure your in wishes are carried out and your Estate runs as smoothly as possible to protect the ones you love and what matters.
At ACL-Law there is no Estate that is is too small or to large. We are able to prepare a Will that will be tailored to your particular circumstances. We are experts in preparing:
- Simple Wills (i.e. leaving everything to your partner and if you both die. to your children equally);
- Complex Wills (i.e. having multiple gifts to multiple beneficiaries, dealing with blended families, including options for specified beneficiaries to purchase Estate property);
- Testamentary Trusts within a Will;
- Codicils (i.e. a minor amendment to your Will without the need for the preparation of new Will;
- Memorandum of Wishes (i.e. a document which sets out your wishes, directions and reasons to your Executor regarding the drafting of particular documents and the distribution of your Estate); and
- Mutual Wills Agreements.
- Assisting in the preparation of an Executor Dossier.
This is an effective and highly useful document which sets out your current asset and liability position, family background as well as providing directions and/or wishes to your Executor. Whilst your Executor is not bound to follow your wishes it will at least giving the Executor some guidance as to what you want. Without this document the Executor may not know where to begin.
- Assisting in the preparation of a Legal Guardian Dossier.
Most parents have strong views and beliefs as to how they want their child/ren raised. When you appoint a Legal Guardian you are entrusting that the guardian will instill the same values and beliefs in your child that you would. By preparing a Legal Guardian Dossier you are able to specifically set out how you want your child/ren raised, including but not limited to:
- what type of education they are to receive;
- any religious requirements;
- where the child is to live and in the lifestyle they are to live;
- any particular health care needs/treatment for the child; and
- any other general information you wish to convey to the Legal Guardian.
Whilst the Legal Guardian is not bound to follow your wishes it will at least give the Legal Guardian some guidance as to how you want your child/ren to be raised. Without this document the Legal Guardian may not know where to begin.
- Enduring Powers of Attorneys.
An Enduring Power of Attorney (EPOA) is an important legal document that allows you to appoint someone to make personal and/or financial decisions on your behalf. You may not always be able to make decisions when you need to. You may be too ill to make choices about your medical treatment, or you could suffer a disability that prevents you from communicating your wishes to others. The advantage of an EPOA is that you will have chosen who you would like to make decisions on your behalf and when those decisions can be made (i.e. immediately, or for a particular duration of time or upon your loss of capacity). Preparing an EPOA now will save your loved ones a lot of unnecessary stress and expense (an application to QCAT would be needed, see above) if something where to happen to you and you did not have an EPOA.
- Advanced Health Directives.
An Advance Health Directive is a document that states your wishes or directions regarding your future health care for various medical conditions. It comes into effect only if you are unable to make your own decisions. You may wish your directive to apply at any time when you are unable to decide for yourself, or you may want it to apply only if you are terminally ill.
- Superannuation Death Benefit Nominations.
Ordinarily superannuation does not form part of your Estate, which means it is not automatically covered by your Will. Specific rules apply to superannuation death benefit entitlements including who can make a claim for the benefits and who can be a nominated recipient of the entitlements. Not all persons are eligible recipients of superannuation death benefit entitlements. This means specific steps need to be taken, as part of your overall Estate Planning, to ensure that your superannuation ends up with the person/s you intend to benefit (provided they are an eligible recipient). Call us to discuss who would be an eligible recipient of your superannuation death benefit entitlement.
- Reviewing your Self Managed Superannuation Fund (SMSF) Deeds.
Every SMSF is slightly different. To have an effective Estate Plan you need to ensure that your SMSF is compliant with the recent amendments to the Superannuation laws. Many SMSFs which predate 2016 do not comply. It is very important to ensure that your SMSF complies with the legislative amendments as this is the document that gives the Trustee the authority to take action. If the Trustee were to undertake an action without the authority of the Trust Deed, because the SMSF was out of date, they could risk:
- acting on invalid / out of date authorities;
- loss of tax benefits - e.g. if they attempt to commence a particular pension without the power in the deed; or
- the wrong beneficiaries receiving death benefits because of invalid documentation (e.g. death benefit nominations not being valid).
- Business Succession Planning and reviewing Company Structures to ensure control passes to the persons you intend upon death.
There are so many things to think about when you are in business. Often your focus is on immediate issues and not long-term issues such as what is to happen to the business upon your death. If you do not have the appropriate structures / measures in place, control of your business upon your death could land in the hands of someone you do not want.
Estate Planning is not only about planning for the succession of your personal wealth but also for your business. Business succession planning is the process of arranging your business affairs now to minimize the impact upon your business should the unexpected happen. It is an integral part of your Estate Planning. If you do not get it right, all your hard earned wealth could be lost.
It’s never too late to get the structure of your asset ownership right, to ensure you are better prepared to maximise your wealth and implement your business succession plans. For an affordable fixed fee, we at ACL-Law can undertake a complete review of your current business/structure and provide you with recommendations of how you can best prepare for the future of your business.
- Establishing a Special Disability Trusts.
A Special Disability Trust (SDT) is a special type of trust that allows parents and immediate family members to plan for current and future needs of a person with severe disability. The trust can pay for reasonable care, accommodation and other discretionary needs of the beneficiary during their lifetime. If set up properly, SDT will allow the named beneficiary to preserve their government entitlements, which are currently means tested. An SDT in certain circumstances (provided the value of the assets held in the SDT are below the threshold) will be exempt from the means test. This often gives families peace of mind and confidence that on-going financial support will be available for loved ones who require additional support and assistance. Strict rules apply to SDT and they are heavily regulated. Contact us today to discuss whether an SDT would be appropriate in your situation.
Effective Estate Planning is not an isolated process, it involves crafting a complex web to ensure that ALL assets and your hard earned wealth are captured and end up in the hands of your loved ones and those who you want to benefit.
There is no better time than today to start your Estate Planning.
Call us now to see how we can assist you.
All things ESTATE ADMINISTRATION
When a loved one dies, it can be a very stressful and emotional time. Many people find themselves in a position they have never been in before and do not know where to begin. This can add to the stress they feel. At ACL-Law we can elevate some of this stress and burden from you by providing clear and concise advice to you, whether you are a beneficiary of the Estate or you have been appointed as an Executor.
Let us take some of the burden of sorting out the Estate or protecting your rights as a beneficiary during this troubling time, so you can focus on grieving for your loved one properly.
Below is a short rundown on the types of matters ACL-Law can assist you with:
- Obtaining Probate or Letters of Administration.
Probate involves making an application to the Supreme Court to prove and register the last Will of a deceased person. When a person dies, somebody has to deal with their Estate. It is usually the Executor of their Will who administers the Estate and handles the disposal of the deceased’s assets and payment of their debts. In order to get authority to do this, the Executor usually need to obtain a legal document called a 'Grant of Probate'.
In circumstances where there is either no last Will or there is an issue with the Will (i.e. the Executor has died / refuses to accept the position and someone else has to be appointed as an alternate), then Letters of Administration will need to be obtained from the Supreme Court. This is an alternative to obtaining Probate and can be a complex and a legally technical process. Letters of Administration allows the administrator(s) to manage and distribute the deceased's assets. Until Letters of Administration has been obtained, no one has the authority to appropriately deal with the deceased’s Estate.
In Queensland, where there is a valid last Will, not all Estates require a Grant of Probate to be obtained from the Supreme Court, it is largely determined by the type of Estate assets and the value of the assets. Where there is no valid last Will or there is no Executor, however, then Letters of Administration must be obtained before the Estate can be administered. In New South Wales on the other hand, obtaining either a Grant of Probate or Letters of Administration is mandatory, regardless of the types of Estate assets or their value.
Call us today to discuss your particular situation and whether a Grant of Probate or Letters of Administration is required.
- Transmitting property and assets to the surviving owner.
Under a joint ownership of property or assets, if one joint owner dies, the interest in the property or asset held by the deceased immediately passes to the surviving joint owner/s pursuant to the rules of survivorship (not on the basis of the provisions in the deceased’s Will).Call us today to discuss how we can elevate the burden of ensuring the correct forms, information and documentation are provided to the Land Title Registry and/or the asset holder, so the decease’s death is recorded and the title of the asset vests in the surviving joint owner/s.
The title of the property/assets must be formally changed and the Land Title Registry or the asset holder (e.g. a bank or share registry) must be formally notified of the deceased’s death. This often involves complex applications or numerous forms which need to be completed correctly. Unfortunately, unless the forms are completed correctly and all supporting information / documentation is provided, the Land Title Registry or the asset holder will not record the deceased’s death and their name will not be removed from the property title or asset.
- Estate Administration.
Administrating a deceased Estate is a very involved process which has a number of steps that must be undertaken before the ‘Estate Administration’ can be classified as having been completed.
Estate Administration essentially is the process undertaken by the Executor or the Administrator to:
- Identify and locate beneficiaries in accordance with the Will or to law;
- Identify collect and pay the deceased’s liabilities from the deceased’s assets (where sufficient);
- Obtain a Grant of Probate or Letters of Administration from the Supreme Court;
- Identify, collect and distribute the deceased’s assets to the beneficiaries;
- Defend any litigation brought against the Estate; and
- Attend to the taxation affairs of the deceased.
Administering an Estate can be time consuming and lengthy process depending on things like, the assets and liabilities involved, if there is any Estate litigation brought and the dealings with the beneficiaries (i.e. how easy the beneficiaries are to locate, the number of beneficiaries, the types of gifts, the Executor/beneficiary relationship or beneficiary/beneficiary relationship (e.g. a strained relationship with a lot of friction/disputes will usually result in increased delays in the Estate Administration) etc).
Given the complexity involved it is important that you have someone who is able to walk you through the legal mind field that is Estate Administration. Call us today to see how we can assist you in administrating the Estate.
- Acting for Beneficiaries of a deceased Estate.
Three of the most common complaints from beneficiaries (whether derived from the deceased’s Will or from law) during an Estate Administration are:
1. The Executor / Administrator is withholding a copy of the Will from them;
2. Information is being withheld from them or they are not being regularly updated as to the progress of the Estate Administration. A common comment from beneficiaries is that they ‘do not know what is happening’. The lack of information and communication between the Executor/Administrator and beneficiaries tends to escalate the level of stress and anxiety the beneficiary feels and creates a lot of unnecessary tension on the Executor / beneficiary relationship; and
3. The amount of time the Estate is taking to be administered.
Beneficiaries have certain rights which are protected by law. Unfortunately, not all Executors/Administrators appear to appreciate the beneficiaries’ protected rights and often violate them. One of the beneficiaries’ fundamental rights is to the “due administration of the Estate”. This is the right to make the Executor/Administrator undertake the administration of the Estate properly and in a timely manner.
If you have been named as a beneficiary of a Will or at law, call us today to discuss how we can ensure your rights are protected.
- Executor's Commission.
Whilst the Executor has a right at law to make a claim to be compensated for their ‘pains and troubles’, there is no automatic entitlement and not every Executor actually receives remuneration for their role in the Estate Administration.
Executors Commission is the remuneration of the Executor for their services (‘pains and troubles’) in administering the Estate. Executor’s Commission is paid upon the nature of the services (tasks) performed and the responsibility for their care and maintenance of assets during the Estate Administration. Essentially the amount of Executor’s Commission paid will be dependent upon the pains and troubles of the Executor.
Call us today to discuss whether you could make a claim for Executor’s Commission and what is involved in the process.
- Claiming Superannuation death benefits.
When a superannuation fund member dies, the fund must pay the deceased’s superannuation death benefit, including an insured lump sum, to an eligible recipient. An eligible recipient of a superannuation death benefit includes a dependent on the deceased, or someone who was otherwise in a close personal relationship with the deceased or to the deceased’s Estate.
Many superannuation funds allow members to nominate who to pay the superannuation death benefit to upon their death. Where there is no valid death benefit nomination, it is up to the trustee of the superannuation fund to decide to whom to pay the death benefit to (although the decision is limited to the class of eligible recipients). If an eligible claimant is unhappy with the trustee’s decisions, they can lodge an objection to the decision. Therefore, it is extremely important to ensure that as part of your Estate Planning, your superannuation death benefit nomination is up to date and is valid to prevent your superannuation death benefit being paid to someone whom you do not wish.
At ACL-Law, we can examine whether you are an eligible claimant for the deceased’s superannuation death benefits. If you are an eligible claimant, to ensure that you receive your full entitlements from the deceased’s superannuation, we can assist you with:
- compiling an application claiming a superannuation death benefit;
- liaising with the trustee of the superannuation fund on your behalf as a claimant or as an Executor/Administrator or beneficiary of the Estate;
- liaising with the trustee of the superannuation fund if there is an objection lodged; and
- liaising with AFCA (Australian Financial Complaints Authority) if an appeal is lodged.
Call us today to discuss how we can assist you make a claim for the superannuation death benefit.
Let us take some of the burden of sorting out the Estate or protecting your rights as a beneficiary during this troubling time, so You can focus on grieving for your loved one properly.
Call us now to see how we can assist you.
All things ESTATE LITIGATION
Disputes over loved ones' Estates can be extremely complex, stressful and often emotionally confronting. Estate Litigation not only raises issues about the actual matter in dispute (i.e. being left out of a Will or the validity of a Will), but it also raises issues within the family unit (particularly relating to certain relationships between family members and the deceased). These family issues if not dealt with correctly during the Estate Litigation process, can have lasting disastrous effects upon the family unit. At ACL-Law we are not only concerned with resolving the dispute but we are also concerned with attempting to salvage and foster your ongoing relationship with your family members (where possible of course). Based on our experience over the years we have found that a multi faceted approach to resolving Estate disputes not only resolves the immediate legal issue at hand but it can also provide some form of comfort to the parties moving forward.
To us, Estate Litigation is about more than taking a matter straight to court, which is an expensive time consuming process. At ACL-Law we strive to attempt to firstly resolve the matter by alternate resolution methods, however, where the matter is unable to be resolved, we are more than experienced and confident to take the matter to court for determination and resolution.
Below is a short rundown on the types of matters ACL-Law can assist you with:
- Contesting a Will.
- Informal Will Applications.
- Defending Claims made against an Estates.
- Solemn Form Proceedings (e.g. challenging a Will based on validity, capacity of the Will maker at the time the Will was made, undue influence).
- Facilitating early dispute resolutions and mediation.
- Acting as Litigation Guardian.
- Burial Disputes.
- Defending challenges made against Superannuation death benefit entitlements.
- Applications relating to the interpretation and construction of provisions within a Will.
- Applications for Trustee Directions.
- Compensation Applications.
- Applications for removal of Executors.
- Unravelling transactions the Deceased may have been involved in prior to their death or recovering property/assets which the Attorney may have received whilst acting as the deceased's Power of Attorney.
(The classic example is where the deceased prior to death gives away their house to a particular family member, or to their Power of Attorney or to a Third party).
No one ever likes to feel wronged. At ACL-Law we work with you to minimize some of the stress and the complexity associated with Estate Litigation by providing you with expert, up to date advice on your matter while building the strongest case possible to achieve a favourable outcome.