Every day people are involved in accidents or become sick. Sometimes this can mean that you are unexpectedly not able to make decisions for yourself.  There is a way to ensure that someone you trust can make decisions for you should this power be taken away from you.

Making a document called an Appointment of Enduring Guardian is a powerful and proactive step that you can take today whereby you can appoint a trusted friend or family member (or more than one) to make health and lifestyle decisions for you in the event that you are unable to make decisions for yourself.

It is a common misconception to think that only the elderly need to appoint an enduring guardian.  Accidents and illness happen to people at all stages of life and from all walks of life.  If you are over 18 years of age and you have the capacity to understand what you are doing then you can make an Appointment of Enduring Guardian.

Too often people think “well if I get sick, then I will make one”. By then it is often too late. If a person is suddenly rendered incapacitated and a decision needs to be made for them often this will necessitate an application to the Guardianship Tribunal. This in turn can make an already stressful situation more difficult with no guarantee as to who may ultimately be appointed by the Tribunal.

Making an Appointment of Enduring puts the power in your hands. You can choose who makes decisions for you and the types of decisions. For example your guardian (s) can decide:

• where you live
• what health care you receive
• what personal services you receive
• to consent to medical or dental treatment for you, and
• to refuse medical and dental treatment in certain
  circumstances

You can also make the above decisions subject to directions such as turning off life support where there is no reasonable chance of recovery and enabling your guardian to be able to obtain and view all of your health and lifestyle records where they would otherwise be unable to due to privacy laws.

Importantly, an Appointment of Enduring Guardian only takes effect if you become unable to make health and lifestyle decisions for yourself.

Thinking about not being able to make decisions for yourself is difficult but giving the power to someone you trust to make decisions for you is easy and can bring some much needed peace of mind to you and your family.

At Everingham Solomons, we have the experience and expertise to assist you in making an Appointment of Enduring Guardian which will ensure that your wishes are carried out, because Helping You is Our Business.

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Grandparents are often very generous in their support of their grandchildren. Sometimes that is a matter of choice. Sometimes, a matter of necessity. The issue of whether a grandchild is financially dependent upon a grandparent can be relevant in many areas of the law.

It is quite common theses days for grandparents to wish to pass their death benefit superannuation entitlements to their grandchildren . The ability to demonstrate the financial dependency of the grandchild is very relevant in this context.

In order to pay a superannuation death benefit to a grandchild, and for the grandchild to receive it tax-free, the grandchild needs to establish financial dependency upon the grandparent.

Financial dependency is a matter of fact and in each particular situation needs to be individually assessed. Case law suggests that financial dependency can arise even when the financial assistance provided was to enable the grandchild to maintain a standard of living higher than the necessities of life. Not surprisingly, the ATO takes a less generous approach.

The ATO position is that financial dependency occurs where the grandchild is wholly or substantially maintained financially by the grandparent. The following points are drawn from published rulings issued by the ATO –

• If the financial support provided merely supplements the grandchild’s income and represents “quality of life” payments, it would not be considered substantial support;
• issues of quality of life and enjoying a reasonable standard of living are irrelevant for the purposes of determining dependency;
• paying for social outings, medication, pocket money, entertainment and sporting costs will not be sufficient;
• amounts spent on luxury items such as entertainment rather than child’s day to day living expenses are not relevant;
• payment of private school fees are not of themselves evidence of financial dependency but when coupled with other factors such as payment of necessary food, shelter and clothing expenses can be relevant to the issue of dependency; and
• the financial support must be regular.

Often the biggest single issue to overcome to establish dependency is lack of proper records. Retaining evidence of expenditure on a grandchild will always be critical to proving financial dependency.

At Everingham Solomons we can assist you with all your estate planning including situations involving complex structures such as superannuation funds because Helping You is Our Business.

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Recently, the Office of State Revenue announced that the First Home Owner Grant (New Homes) of $15,000 is being extended for a further two years from 31 December 2013 to 31 December 2015. On 1 January 2016 it will reduce to $10,000.

The First Home Owner Grant (New Homes) applies to the purchase of a new home only. It does not apply to the purchase of an established home, vacant land, business premises or a holiday home.  A new home is a home that has not been previously occupied or sold as a place of residence.

To be eligible to apply for the Grant, you must be able to meet at least the following conditions:

• You must be over 18 years of age;
• The property must be purchased in your name and not in the name of a company or trust;
• If there are two people buying together, one person must be a permanent resident or an Australian citizen;
• All applicants and/or their spouse/de facto must not have previously owned a residential property, jointly, separately or with some other person in any State or Territory before 1 July 2000;
• The purchase price must not exceed $650,000;
• The applicant and/or their spouse must have not previously received a first home owner grant in any State or Territory; and
• At least one applicant must occupy the home as their principal place of residence for a continuous period of six months, commencing within 12 months of purchasing the new home.

Like most applications, conditions apply and penalities will be imposed on any person who knowlingly supplies false or misleading information at the time of making an application for the grant. An assessment as to whether you are eligible to apply must be determined based on your individual circumstances at the time you are seeking to purchase a new home.

If you are a first home buyer and you are considering buying a new home, you should come and see our experienced property team who can help answer all of your questions and put you on the path towards owning your new home, because Helping You is Our Business.

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The transition to retirement living can be a rewarding one. Along the way some important decisions need to be made.  One of those decisions may include moving into a retirement village. In an effort to help make that decision process easier for prospective residents, new laws come into effect on 1 October this year. It is timely to look at those changes and retirement living more generally.

Under the law, a retirement village is defined as being a complex containing residential premises that are predominantly or exclusively occupied by retired persons who have entered into a village contract with an operator of the complex. A retired person “means a person who has reached the age of 55 years or has retired from full-time employment”.

Up until this point in time there have been various forms of retirement village contracts.

From October there will be three main changes. Firstly, village operators will be required to use a new standardised village contract. Secondly, prospective residents will receive a general enquiry document that explains the services and facilities available to them in the village. Thirdly, a new simplified disclosure statement will be given to prospective residents before they sign a village contract.

According to the Minister for Fair Trading Anthony Roberts: “These reforms will make the move into a village easier and less stressful for retirees and their families”. The new standardised contract “will allow prospective residents to compare apples with apples when making the important choice of which retirement village to move into”.

After making an initial enquiry with an Operator of a retirement village, a prospective resident will be provided with a two page general inquiry document. The document provides general information about the village including the village type, costs to enter the village and village facilities.

The new version of the disclosure statement provides more detailed and specific information including financial arrangements particular to the village and unit.

The new standard contract covers matters such as what residence rights are involved, entry costs, the settling-in period, recurrent charges, services and facilities, alterations and additions, repairs and maintenance, sharing of capital gains, and departure fees.

As an added measure of protection for residents and their families, the legislation still provides for a settling in period and cooling off period.

Making the move into a retirement village has significant financial and legal implications.  Taking the time to properly know and understand the village contract is essential to ensuring that the choice of retirement village is the right one for you. The experienced team at Everingham Solomons can help guide you through the process because Helping You is Our Business.

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There’s usually a relative, sometimes one who is hurt and sad because he or she has been left out of the Will or otherwise treated unfairly.

The hurt can be undone. Under the Succession Act 2006 (NSW), the Supreme Court can rewrite an unfair Will on the application of wives, husbands, de factos, children, former wives or husbands, dependents, grandchildren or members of the household of, or those living in a close personal relationship with the deceased.

An applicant for relief must show a need by reference to his or her age, health, financial situation, earning capacity and the like.  An applicant must be  “deserving”  that is to say to have had such a relationship with the deceased that it might be expected that he or she would benefit under the Will. The applicant must show that the relief sought is reasonable given the size of the estate, and weighing the claims of the applicant against the claims of other people for whom the deceased person was under a moral obligation to make provision.

There is a time limit on applications.  The proceedings must be commenced not later than 12 months after the date of death.  Time can be extended on sufficient cause being shown.

A Will may be unfair because the deceased did not have sufficient mental capacity at the time that he or she made it. In this case, the Court can strike  down the Will, which will revive the most recent  former Will made by the deceased at a time that he or she had sufficient capacity  The test of capacity centres on the deceased’s understanding of what constitutes his or her estate and who is entitled to benefit from such estate and why.

A Will may be unfair because it was made under undue influence. There are all sorts of unseemly relationships, which involve undue influence by one person over another. The Court has power to strike down a Will which is the product of undue influence.

Where there’s a Will there’s usually also a lawyer. At Everingham Solomons we have lawyers able to give expert advice in relation to claims arising out of unfair Wills and your first consultation with us will be free and absolutely confidential because Helping You is Our Business.

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Making a Will is one of the most important things a person can do during their lifetime. Like many things in life though preparation is the key and very often people fail to take the time to put in place a Will that carries out their wishes.  An integral part of making a will should include seeking legal advice. Why? The reason is simple. Whilst the law recognizes a person’s right to decide who inherits their estate, the law equally recognizes a person’s right to contest or challenge a will. Also failing to make a will at all can be a time-consuming and expensive process for family members that can be avoided if an up-to-date will is in place.

There are often genuine reasons why a person should contest a will. For example a will made out of spite can have devastating effects for a family. Likewise a will that is so far out of date that it fails to take into account the person’s true circumstances at the time they die can have similarly devastating consequences for an already grieving family.

Typically a will may be challenged on two grounds. Firstly, because a person has been left out of will or unfairly provided for in a will. Or secondly, because the person who died left a will in which they did not have the mental capacity to understand what he or she was signing.

There are strict time limits that apply for challenging a will and it is essential that legal advice is sought.

Whether you are a person seeking to make a claim against another person’s will, or the executor named in a will, or a person needing to make a will, obtaining legal advice is essential.

At Everingham Solomons we have the expertise and experience to assist you with your Estate Planning needs and claims for a more equitable share in a person’s estate. We can work with you to identify the legal issues relevant to your situation and advise you of the options available so you can make an informed decision that’s right for you, because  Helping You is Our Business.

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As the year draws to a close, it is timely to commit to new goals for the coming year. As you spend time with family and loved ones this Christmas, we encourage you to consider estate planning as one of your goals for the coming year.

This could mean one of two things. It could mean making a will for the first time which is tailored to suit your personal and financial circumstances. Or updating your current will in case your circumstances have changed since the last time you made your will.

One recent case serves as a timely reminder that just as life does not standstill nor should your will be locked away in a drawer and forgotten.  Your will needs to be reviewed and updated regularly to ensure it carries out your wishes.

The Deceased made a Will in 1959. She died some 40 years later. The estate of the deceased consisted principally of a house and a bank account.

The applicant in this case was the grandson of the deceased (the Plaintiff).

There was a very good relationship between the Plaintiff and his grandmother.

Having been left out of his grandmother’s will, the plaintiff claimed that for a period of twelve years he resided in the same house as the Deceased, that for at least the last four years of her life he was the principal carer of the Deceased, looking after every aspect of her daily routine, recognised by him receiving a carer’s pension. It was submitted that that care was undertaken at a considerable sacrifice to the Plaintiff, who has been subsequently disadvantaged. Further, that in consequence of the efforts and activities of the Plaintiff there was a substantial contribution by him to the conservation of the assets which comprise the estate of the Deceased. The Plaintiff submitted that those contributions to the personal and financial welfare of the Deceased were such as would cause him to be generally regarded as a natural object of the testamentary recognition of the Deceased.

Taking into account all of the circumstances of the case, the Court agreed.

In so doing the Court emphasised that an order for provision is not made as a reward for good conduct. Neither is such an order withheld as punishment for perceived bad conduct on the part of an applicant.

As one of your goals for 2012, we encourage you to put your affairs in order for the benefit of your loved ones and for your own peace of mind. At Everingham Solomons we have the expertise to assist you with all matters relating to Estate Planning, because Helping You is Our Business.

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