Powers of Attorney

From time to time a person needs someone else to look after their affairs for them. This might be a temporary situation such as being hospitalised or overseas.

It is also worth looking forward to the possibility that because of age or incapacity you need to rely on a trusted spouse, relative or friend on a more permanent basis. TRUST is the main thing. Although a person has a duty to act in your interests and not their own it can be unclear.

Without a power of attorney those who want to help you may have to apply to the Guardianship Division of NSW Civil and Administrative Tribunal (NCAT) for permission to look after your affairs.

Everyone, but especially seniors, should complete and sign a power of attorney. What to put in the document can be tricky and it’s worth getting legal advice.

Contact Solicitor Philip Gerber at gerberlegal@bigpond.com  or on 0408 218 940 for advice and assistance to prepare your power of attorney.

Risk Assessments, churches & go-kart races

All church staff and volunteers need to undertake proper and careful risk assessments of your activities especially if there is a possible inherent danger.
Your insurer will require that you do so as well as the courts, see the recent WA Supreme Court decision of Apostolic Church Australia Limited v Dixon [2018] WA SCA 146 (21Aug18).

https://www.pressreader.com/australia/the-west-australian/20180821/281998968306472

The local church conducted a go-kart race in their church car park. No risk assessment was undertaken and no protective barriers were erected. Sadly the probably inevitable go-kart spill occured  with serious injury to the go-kart driver.

The church was held legally liable for the injuries because of their failure to undertake any risk assessment as well as their failure the erect suitable protective barriers.

Contact Solicitor Philip Gerber at gerberlegal@bigpond.com for advice about these sorts of matters.

 

Are wills effective which treat children equally?

Charlwood v Charlwood [2017] NSWSC 1033 (10 August 2017)

The Plaintiff, an adult child of the deceased, made a claim for a family provision order because he wanted more than an equal share of his parent’s will. There was no dispute as to the Plaintiff’s eligibility as a child of the deceased. The Defendant was also an adult child of the deceased and a beneficiary named in the Will. It was a reasonably sized estate in value principally comprising real property. The Plaintiff and Defendant shared equally the estate under terms of the Will. There was a competing financial claim advanced by the Defendant because he had a wife and two children to support.

The question was whether a family provision order should be made, and if so, the nature and quantum of the provision to be made. The Court had to consider “whether adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made provision in Will”.

The Plaintiff’s  request to vary the will competes with the general principle that “The court does not simply ride roughshod over the testator’s intentions… The court’s power to make an award is limited. The purpose of the discretionary power under Section 59(1) of the Family Provisions Act is to redress circumstances where ‘adequate provision’ has not been made for the ‘proper maintenance, education or advancement in life’ of the claimant. The adjectives ‘adequate’ and ‘proper’ are words of circumspection.”

The Court considered in fairly minute detail the personal and  financial circumstances of the Plaintiff and the deceased.

Ultimately the Court did not “carve up” the estate more favourably towards the Plaintiff, esseentially leaving the terms of the will in place.  It was determined as follows.

The way in which adequate and proper provision ought to be made for the Plaintiff is by way of a loan from the Defendant’s share of the estate, secured by a Mortgage that is registered on any property that the Plaintiff does purchase, which property should be purchased in his sole name.

The amount the subject of the loan should be no more than $150,000 and it should only be borrowed out of the estate (or effectively out of the Defendant’s share of the estate), if the Plaintiff does purchase a property for a purchase price of more than the amount he ultimately receives from his share of the proceeds of sale of the Austral property.

By way of example, only, if the purchase price of any property to be purchased is $550,000, and if the Plaintiff’s entitlement under the Will is $400,000, then the amount borrowed should be limited to $150,000.

Of course, if the Plaintiff determines that he does not wish to borrow any amount, but move away from the Austral area, and purchase accommodation for the amount that he ultimately receives pursuant to the terms of the deceased’s Will, or otherwise does not wish to have a mortgage of any kind registered in the name of the Defendant secured on any property that he might own, he will not be obliged to borrow any amount.

If the Plaintiff chooses to obtain a reverse mortgage, a matter suggested, but about the availability of which there was no evidence, he can do so without the need to look to the Defendant’s share of the estate to provide a loan.

 

 

What Lawyers Cost?

Remember when your Lawyer was a best and trusted friend and advisor and it wasn’t just about the money?

Now there is a Lawyer who is reviving this ideal.

Philip Gerber at Gerber Legal offers advice and advocacy. He is:

Experienced – 33 years a Lawyer.

Affordable – not free, you get what you pay for, charging well under the average cost of other Lawyers. e.g. Initial face-to-face 1 hr+ consultation: $190.00 + GST. He will provide you with a written costs fixed-price disclosure (quote) if the matter is going to cost more than $750.00.

Accessible – deals directly with you, comes to you (Sydney Metro), or by Skype, communicates in understandable language and has an approachable manner.

Contact Philip for more information, hourly rates or a quote at gerberlegal@bigpond.com