Capacity is a fickle thing which Solicitors and other professionals are required to assess before a person can make certain decisions for themselves.
There are many factors which can affect ones decision making capacity; including a number of medical conditions, disability, age, and level of education.
Under Australian Law there is a presumption that an adult has their own decision making capacity.
In addition to this, there are some documents where a specific test for capacity is required. These documents usually require that a person specifically understand the nature and effect of the documents that they are signing.
Generally, this means that a person must be able to:
• Understand the facts and the choices involved with the decision;
• Weigh up the consequences and potential ramifications of the decision;
• Make a decision free from the influence of family and without coercion; and
• Communicate their decision clearly.
Remember, just because a person makes a decision that you don’t agree with, does not mean that the lacked the capacity to make that decision!
A person must have the capacity to make the decision at the time that the decision is made or effect is being given to the decision. For example a person must have capacity at the time of signing a legal document.
It is important that you think about your future while you have the capacity to do so. This might include planning for the event that you do lose the capacity to make your own decisions.
Documents such as a Power of Attorney and Appointment of Enduring Guardian can be drafted where you nominate someone to make decisions on your behalf, in the event of a loss of capacity. Unfortunately, once you lose capacity it is too late to put these documents in place.
If you wish to ascertain if you or a loved one could make a legal document or have questions about what happens after a person loses capacity please contact our office because at Everingham Solomons Helping You is Our Business.
COVID-19 has made many people think about their mortality. Making a Will has become a priority for a lot of people in an effort to protect loved ones and as a means by which we can create some certainty as to our last wishes in an otherwise increasingly uncertain world.
Usually, a valid formal Will must be signed by the Willmaker in the presence of two witnesses. This requirement can present an obstacle when you take in account the current social distancing and isolation directives issued by the Government. These directives really do not make the task of signing a Will in the presence of two witnesses who are not family members an easy one.
If you die without leaving a Will, the intestacy laws of each State and Territory will apply to determine how your assets will get distributed on your death according to a prescribed legal formula. Importantly this formula may not reflect your true wishes.
Taking into account the above dilemma, the NSW State Government has introduced temporary new laws that will allow the witnessing of Wills, Enduring Powers of Attorney and Appointment of Enduring Guardianship documents as well as other important legal documents by videoconference.
“These changes will make it easier for people to stay home and reduce physical interactions, while still completing important transactions”.
Everingham Solomons is continuing to assist our clients during COVID-19 and this includes conducting meetings via videoconference.
If you are concerned about your estate planning, it is important to know that we can assist you to put in place a Will that reflects your wishes and will bring peace of mind to you and reduce the burden on your family and loved ones when you die. At Everingham Solomons we have the expertise and experience to assist you with all of your estate planning needs, because Helping You is Our Business.
Click here for more information on Lesley McDonnell
Initially, you need to establish if the deceased person had a Will, to determine who the executor is, that is who can manage the Estate.
Next, has a grant of probate been obtained by the executor? If no, you will need to provide further information to the ATO if you wish to establish authority to deal with the tax affairs of the deceased person. If probate has been granted, then the executor has authority to notify the ATO of the person’s death and deal with their tax affairs.
Notifying the ATO of the person’s death can be in paper by completing a “Notification of a deceased person” form with a certified copy of the Death Certificate and Will and submitting it by mail. By doing this, you will have officially notified the ATO of the person’s death and made the ATO aware of the relevant parties acting on behalf of the deceased Estate i.e. the executor.
If you do notify the ATO online, you will need to attend an Australia Post office to provide a certified copy of the Death Certificate and supporting documents.
Alternatively, if you, as the executor have appointed a solicitor to act on your behalf for the Estate, the solicitor can provide the ATO with this information. However, you may be contacted by the ATO to confirm these details.
Do you need to lodge a final individual tax return? This is called a “date of death tax return”. As to whether you need to lodge this form will depend if the deceased:-
• had tax withheld from income they earned
• earned taxable income exceeding the tax-free threshold
• had tax withheld from interest or dividends because no TFN was quoted to the investment body
• lodged tax returns in prior years prior to their death
• should have lodged tax returns in prior years.
If a tax return is not required to be lodged, you need to complete a “non-lodgment advice” for the tax year and send it to the ATO.
Do you need to lodge a tax return for the deceased Estate? This will depend upon the assets of the estate and if any income is received or derived by the deceased Estate. If the Estate is not finalised within the income year and there is income derived from the Estate, then a deceased Estate tax return will need to be lodged every financial year until the deceased estate is fully administered or disbursed. If a deceased Estate return is required, a tax file number will need to be obtained for deceased Estate.
The above information is a general guide only. For enquiries regarding tax, we recommend you contact the deceased’s accountant or the executor’s own accountant to obtain detailed tax advice to finalise the tax affairs of the deceased.
At Everingham Solomons we have the experience and expertise to assist you with any deceased Estate issue, because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
It’s happened. The dreaded jury service summons has appeared in your mail box and you are mentally trying to figure out how many seasons of Suits you can binge watch before you have to attend. But largely you are probably thinking… Do I have to?
If you have been summoned to serve on a jury then you are legally required to attend Court on the date provided in the summons. However there are some circumstances where you can apply to be exempt or excluded from serving.
To be excluded or exempt from jury duty means that you are not allowed to serve on a jury. Generally, people who are excluded or exempt is because they work in the legal, political or criminal justice system, and because the perception that these people may attempt to examine the Law rather than make decisions based on fact, which is the role of a jury. For this same reason, people found guilty of serious offences are also excluded from service.
You can also apply to be excused from jury service. You will need a legitimate reason for being unable to serve. In some circumstances you can be excused on the basis of your job, however as jury service provides you with an allowance, it is not usually viewed as a legitimate reason. Other reasons you may be excused include: pregnancy, being a full time carer, being absent from NSW (and no you cannot book a holiday after you receive your summons!) or if you have a medical condition that will make jury service difficult.
Juries are an important part of the judicial process and are required in both criminal and civil trials. Our legal system is based around the principle that you are innocent until proven guilty. The role of a jury is to make a decision as to whether a person is guilty of a crime based on the evidence presented to them during a trial. They do not make decisions of law.
But fear not! Only about 9000 of the 200,000 people summoned for jury service each year actually end up serving on a jury. Trials are often delayed, or they don’t proceed because the person involved has decided not to take the matter to trial. In those circumstances, the jurors are usually dismissed and are not required to serve. If a trial is to proceed, then you are taken into the courtroom and if you know any of the people involved with the trial then you will be dismissed. After that, each Solicitor/ Barrister has the opportunity to dismiss three jurors each without providing any reason. So just because you are summoned, does not mean you will have to serve on a jury.
That does not mean that you do not have to attend. If you fail to show for jury service you will receive a letter asking you to explain your absence. If you fail to respond to this letter or if you do not have acceptable excuse for not showing then you can be fined an amount up to $2,200.00. That’s a fair price to pay for a few days of serving your community!
Everingham Solomons have experienced Solicitors who can assist with your Legal matters, because Helping You is Our Business.
I am writing this article overlooked by various family photos including pictures of my dog Charlie. He is very much a member of my family and I’d like to think that he would be well looked after if I was not able to do that personally.
Australia has a very high rate of pet ownership with over 60% of households containing one or more pets. Dogs are the most popular pet followed closely by cats and thereafter by a wide range of birds, horses and other animals.
Household pets often become very important to their owners but relatively few owners make formal provision for their pets in the event of the owner’s death or incapacity. That is usually due to oversight rather than lack of concern. So what can you do?
Most prudent people have Power of Attorney arrangements in place particularly to cover their affairs should they lose the ability to do that for themselves. Unless you make specific provision in your Power of Attorney for expenditure to maintain your pet, your Attorney may not be able to use your money to look after your pet.
Likewise, you need to consider pets in your Will. The issue is nominating the right person to look after your pet and making a financial arrangement to cover care costs after your death. You can’t give money to the pet itself but you can give money to a carer directly or through a trust to be utilised for the welfare of the pet. Your Vet will usually be able to give you some guidance about an appropriate amount to be set aside for future care of your pet.
When making arrangements for a pet either through your Power of Attorney or your Will, it will usually be prudent to also provide the proposed caregiver with “personal” information in relation to the pet. This would usually be done by a separate letter but could detail care instructions, food preferences, veterinary arrangements and likes and dislikes. This information can be invaluable to the carer in making decisions going forward.
At Everingham Solomons we can assist you with all your Estate Planning needs because Helping You is Our Business.
The coronavirus is having a significant impact on many public services and of course families. This includes the operation of the family law system and its associated courts.
The Family Law Section of the Law Council of Australia has recently published a Top 10 guide for separated parents during these testing times. Please see article below.
– Jennifer Blissett
Separated parents experience both the joys and stressors of parenting. But additional pressures and stresses such as those associated with the Covid19 Pandemic can be hard to accommodate and provoke anxiety in parent and child alike.
The Family Law Section has compiled these TOP TEN suggestions to help separated parents navigate this difficult time.
1. Stay healthy
Model best practice habits (for kids, family and friends) to minimise the risk of spread of the virus – frequent and thorough hand washing and responsible social distancing. Simple routines become habit forming.
Guidelines are available at https://www.health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert/what-you-need-to-know-about-coronavirus-covid-19#protect-yourself-and-others
Let the other parent know that you (and all members of the household) are following these guidelines – we all worry that others are not taking things as seriously as we should and assurances bring peace of mind and good will. As with all co-parenting, consistent messaging across households is ideal.
2. Be present and considered
This is a serious health challenge. Children will have heard much through their schools, networks and media.
Children are not necessarily able to accurately process all of this information in a way that allows for peace of mind. Older children whose studies and major social events such as school formals and celebrations have been cancelled may be unsettled and anxious. Younger children can readily become confused and scared by perceived magnitudes of risk.
3. Meeting your obligations
If your parenting matters are regulated by court order or agreement, you must still meet your obligations under those terms unless a reasonable excuse applies. If arrangements become unclear or cannot be met (eg: quarantine, travel restrictions or because schools close) use common sense to find solutions to challenges. If you anticipate a change, give the other parent plenty of notice and an explanation so they also have time to adjust.
4. Adapt
If schools are closed and changeover normally occurred after and at school or sporting events, nominate or start planning for another neutral and public location that will be suitable – and where social distancing practices can be maintained.
Sporting activities or activities parents planned to do with children during school holidays or weekends are unlikely to now be available. Think about whether you will be required to work from home and whether that is feasible when children are in your care.
If time arrangements with the other parent or important people cannot occur, find other ways to try to maintain the connection – including digital communications.
5. Be open
Try to be on the same page with the other parent about the things you will each do in your respective households (and in your wider communities) to limit exposure to the virus and to shield the children.
If a child is showing any symptoms, that information should be shared immediately with the other parent, and an agreed response implemented. Know what your own self-isolation plan will be so that you are able to share that with the other parent if necessary.
Try to engage openly and honestly with the other parent about your worries and if there has been a risk of exposure to the virus, be honest about that (at which point mandated responses will be required in any event, which will include isolation or quarantine and may include testing).
6. Be mutual
Think about how you would like the other parent to engage with you about these issues, and model that engagement. Make accommodations to the other parent if they are possible and good for the children – and expect such accommodations in return. If time can’t occur at one point, suggest it occur at another point.
All parents and children will benefit from some mutually agreed give and take.
7. Be compassionate
Very few people can apply certainty to their planning in times of stress and may respond to data about risk in ways that may seem disproportionate to you – but understand that we do not have a playbook for how to plan for or respond to this crisis. Being calm in times of high stress is hard – but you are more likely to reduce the conflict if both are making the best effort possible.
8. Be solution focussed
At this time, more than ever, the need for parents and other adults concerned with the care of children to find compromise in the interests of children, is absolutely clear. Courts will increasingly have limited availability; dispute resolution services may be hard to access and common sense coupled with respectful engagement may be the surest path.
It’s an opportunity to find new ways to solve old problems.
9. Help out to the extent you can
People may lose jobs or experience a reduction in their income. This may impact what can be paid by way of child support or the contribution to other expenses.
Try to be understanding of the situation the other parent is in – financial worry will probably exist in both households. The message and legacy of these days should be, as far as possible, that both parents and households worked together to find a solution that was as good as possible for the children.
10. Be patient and positive
This situation is not going to resolve overnight. Changes to the way we work, socialise, communicate and parent will come in the next few weeks and months.
Make a conscious effort to embrace the good and joyful moments in each day, stay connected by phone or social media to friends or family who can support you and remember that you are the beacon for your children at this time.
Confused by the requirements for how to restrain children in the car? It can be quite daunting and sometimes hard to get accurate information regarding child restraints and the legal requirements for car seats.
So let us break it down for you.
Under the NSW Road Rules 2014 you must restrain a child as follows:
AgeType of restraint
0-6 months Approved rear facing restraint
6 months to 4 years Rear or forward-facing approved child restraint with an inbuilt harness
4 years to 7 years Forward-facing approved child restraint with an inbuilt harness or an approved booster seat
7 years plus (145cm or shorter) It is strongly recommended to use an approved booster seat
7 years plus (145cm or taller) Adult lap-sash seatbelt
Additional requirements for the above approved restraints are that they must be properly adjusted and fastened. This means you can be fined for not having your car seat properly fitted.
The penalty for having an incorrectly or unrestrained passenger in your vehicle is 3 Demerit points and a fine of $344.00.
It is important to note that while the above are in place and age specific, if your child is too big or too small for the restraint for their age group, it may be necessary for them to use the restraint suitable to their size, not age.
It is also an offence to have a child between the age of 4 and 7 to travel in the front seat of a vehicle, unless the back seats are taken by children that are younger than them.
At Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.
Your payments to contractors may be subject to payroll tax if the worker is considered as an employee. The NSW Revenue considers a wide range of factors to determine whether a worker is an employee or contractor for payroll tax purposes. Even if a worker is identified as a contractor rather than an employee, your payments to the contractor may still be taxable for payroll tax purposes if a ‘relevant contract’ exists.
According to the Payroll Tax Act 2007 (“Act”), a ‘relevant contract’ is any kind of arrangement where you:
– supply services;
– are supplied with services; or
– give out goods for re-supply after work has been performed in relation to goods.
If your arrangement with contractors is identified as a ‘relevant contract’, your payments to contractors are deemed to be wages, which are subject to payroll tax.
There are some exemptions to the rule relating to ‘relevant contract’:
• The main purpose of a contract is to supply goods, and the services provided by the contractor are only ancillary to the main purpose.
• The services obtained from the contractor are not ordinarily required by your business and the contractor provides the same type of services to the general public.
• Your business ordinarily requires a specific type of service for less than 180 days in a financial year.
• The contractor provides the same or similar services to your business for less than 90 days in a financial year.
• There are certain services approved by the Commissioner as exempt.
• The contractor engages two or more workers to provide the contracted services to your business.
• The services provided by the contractor are incidental to the transportation and delivery of goods by means of a vehicle provided by the contractor.
If no exemption applies, you may still be able to claim a deduction for the non-labour component of the payments where the contractor provides materials and/or equipment.
Everingham Solomons have experienced Solicitors who can assist you in determining if your contractor payments are subject to payroll tax, or any other taxation advice you may require, because Helping You is Our Business.
Coronavirus is the hot topic on everyone’s mind but what happens if you contract Coronavirus as a result of your employment, can you claim workers compensation?
For every Workers Compensation Claim there needs to be an injury and contracting Coronavirus would certainly qualify as an injury. Coronavirus as we have been made aware, currently requires at least a two week quarantine following the end of symptoms to prevent the spread of the virus. Therefore there is an incapacity to work not only while you are sick with the virus but also two weeks following the end of the symptoms.
Some people may simply choose to take personal leave and will have that amount of accrued leave available, while some employers may also pay to have the worker remain in quarantine to prevent other workers being infected.
The question though is, can you claim Workers Compensation?
Under Workers Compensation law section 9A of the Workers Compensation Act 1987 comes in to play. No compensation will be payable in respect to a disease injury unless the employment concerned is the main contributing factor to the injury.
For healthcare workers treating Coronavirus patients this may be a very easy link to prove, provided there is no evidence indicating they were exposed to the virus outside of their employment.
For the rest of society, a case by case review will be necessary.
Other diseases in society such as chicken pox or influenza are not easy to claim workers compensation, simply due to the fact that it is difficult to prove your employment is the main contributing factor of contracting the disease when it is able to be contracted in society generally.
While fortunately at this stage the Coronavirus has not spread to Tamworth or our region, if you think you have a contracted a disease and the main contributing factor is your employment then please contact our office, because Helping You is Our Business.
Click here for more information on Libby Campbell.
Planning ahead for individuals can be challenging but that task can seem harder for family members of individuals affected by severe disability and will often involve more than making a standard Will and appointing a Power of Attorney or Enduring Guardian.
In 2006, the Government introduced Special Disability Trusts into social security legislation with the aim to encourage the private funding of accommodation and care needs for people with disabilities. A Special Disability Trust allows family members to leave assets in trust for an individual with a ‘severe disability’ which can be used to fund that person’s ongoing care, medical expenses, accommodation, and some discretionary expenditure for that person into the future without adversely affecting their entitlement to a disability support pension.
A Special Disability Trust can be established by a Will and allows assets to be left to a beneficiary without having adverse effects on their Centrelink entitlements. A Special Disability Trust may also be set up during a person’s lifetime (for instance by a parent for their child with a severe disability) and the restrictions and concessions applicable will be the same as those that apply to a Trust created by a Will.
A Special Disability Trust must conform strictly to very prescriptive rules and as such it will not suit everyone with a family member who has a disability.
The starting point must always be to determine whether the person with a disability qualifies as a beneficiary of a Special Disability Trust which must fit the definition of ‘severe disability’ under the social security legislation.
Funds in a Special Disability Trust can only be used to pay for accommodation and care expenses related to the disability (including medical and health insurance expenses) and reasonable discretionary expenditure (up to a limit of $12,250 a year, as at July 2019).
A person with a ‘severe disability’ can have $681,750 (as at July 2019, indexed annually) plus a residence held in trust before the assets test applies to reduce his or her social security entitlements. The income from the assets of a Special Disability Trust will not be included as income of the beneficiary. Family members contributing assets of up to $500,000 into such a trust may receive an exemption from the usual Centrelink gifting rules.
It is strongly recommended that individuals obtain expert legal and financial advice to determine whether a Special Disability Trust suits their circumstances. For advice a Special Disability Trust, please contact the experienced team at Everingham Solomons because Helping You is Our Business.
Click here for more information on Lesley McDonnell
Capacity is a fickle thing which Solicitors and other professionals are required to assess before a person can make certain decisions for themselves.
COVID-19 has made many people think about their mortality. Making a Will has become a priority for a lot of people in an effort to protect loved ones and as a means by which we can create some certainty as to our last wishes in an otherwise increasingly uncertain world.
Initially, you need to establish if the deceased person had a Will, to determine who the executor is, that is who can manage the Estate.
I am writing this article overlooked by various family photos including pictures of my dog Charlie. He is very much a member of my family and I’d like to think that he would be well looked after if I was not able to do that personally.
The coronavirus is having a significant impact on many public services and of course families. This includes the operation of the family law system and its associated courts.
Your payments to contractors may be subject to payroll tax if the worker is considered as an employee. The NSW Revenue considers a wide range of factors to determine whether a worker is an employee or contractor for payroll tax purposes. Even if a worker is identified as a contractor rather than an employee, your payments to the contractor may still be taxable for payroll tax purposes if a ‘relevant contract’ exists.
Coronavirus is the hot topic on everyone’s mind but what happens if you contract Coronavirus as a result of your employment, can you claim workers compensation?