The Art of Court Advocacy

In force from 28th November 2023, NSW became the latest Australian state to enact voluntary assisted dying legislation. NSW is the last State to pass such legislation that aims to allow terminally ill patients, or patients in the late stages of advanced diseases, the ability to voluntarily pass peacefully and with dignity. The legislation will give individual patients more control over their end-of-life circumstances, in consideration of factors such as stress, autonomy, quality of life and equal value of human life, amongst other factors. What is voluntary assisted dying (VAD)? Voluntary assisted dying involves the utilisation of medication to bring about the death of a patient. This medication can be administered by a medical practitioner or, if the patient so chooses, they have the option to self-administer under the supervision of a medical practitioner. It is important to recognise the distinction, that this form of dying does not constitute suicide under NSW law. Who is eligible? The option of voluntary assisted dying is available to patients in NSW that: Are over the age of 18 years; Are an Australian Citizen; Have lived in NSW for 12 months or more; Are suffering from at least one disease highly probable to cause death Has the decision-making capacity to act voluntarily. The person is not eligible if they have dementia, disability or other mental illness. What is decision making capacity? Outlined in Section 6 of the Act, a patient will be deemed to have decision-making capacity if they can demonstrate an understanding of the information and advice regarding assisted dying, remember such information, understand the matters related to assisted dying and the enduring effects of such a decision. The patient must also be able to weigh up the factors and advice and be able to communicate their decision or request for access to voluntary assisted dying. What is the process to access voluntary assisted dying? A patient must make a first request: This requires the patient to communicate to their medical practitioner in a clear and unambiguous manner their wish to access voluntary assisted dying. The medical practitioner can accept or refuse this request. If they do however accept, a first request form will need to be completed and taken to the voluntary assisted dying board for approval. This practitioner will now become the patient’s coordinating practitioner. By making a first request a patient is not making an irreversible decision, they are able to revoke this at any time should they wish to discontinue the process. Coordinating practitioner to make first assessment: The coordinating practitioner will assess the patient in relation to each limb of the eligibility criteria to deduce whether they are suitable to access voluntary assisted dying. They have the option to utilise a second opinion if needed, but must provide all information to the patient, including notifying them of the assessment report. Consulting assessment by consulting practitioner: An independent consulting practitioner will be introduced to separately assess the patient to ensure that the eligibility criteria is being satisfied to the fullest extent. Written declaration by the patient: Following the assessments by both the coordinating and consulting medical practitioners, the patient should make a signed written declaration signifying their wish to access voluntary assisted dying. Final request and review by the coordinating practitioner: Patients will again need to make an unambiguous request to their coordinating practitioner. Upon this request the practitioner will undertake the final review. At this point the patient is still not obligated to continue the process of assisted dying and can at any point revoke their request. Do healthcare professionals have a duty to engage in VAD? No, the law does not compel doctors, nurses, or other healthcare professionals to participate in VAD. They cannot be forced to provide information about VAD, assess eligibility, or administer substances for voluntary assisted dying. If a doctor conscientiously objects to VAD, they may assist in finding another willing practitioner. However, if unsuccessful, you might need to take the initiative to get a new healthcare professional who is more open to assisting with the VAD process. Remember, conscientious objection is respected, and alternative support should be sought.

Conveyancing (buying and selling property) is a major part of our firm and our solicitors are very experienced in this area of the law. If you are looking to buy or sell property then contact our office today on (02) 4821 1588 and make an appointment with one of our solicitors. What should you do first? You should speak with your solicitor and also the real estate agent of your choice. Allowing them to become involved at an early stage will assist in planning and may mean that issues are dealt with at the beginning rather than coming up at the last moment and delaying a potential sale. The Agent All agents will give you a sales inspection report and selling agency agreement. This document is required by law and will set out their recommendations as to the sale price and also their proposed commission and any other selling expenses. In the same document, you complete your instructions as to the price at which they are to list the property. Agents cannot list a residential property and market it without having a marketing Contract on hand. This must be available to any proposed purchaser to inspect. This is one of the reasons why you need to speak with your solicitor early on. Solicitor The solicitor will require your identity documents such as a driver’s licence and if the sale price is likely to be over $750,000 then also your tax file number. These are required to enable us to obtain a clear land tax certificate and a tax office clearance if necessary. You will also need to provide to your solicitor the following information: Details of all improvements/buildings erected upon the land. Details of any inclusions that are included with the buildings such as all fixed floor coverings, blinds, curtains, light fittings, TC antenna, clothesline, swimming pool, heating, cooling, stove, wardrobes, BBQ’s, ceiling fans, whatever might be applicable to your home. If the home has been built recently and/or altered (last 6 years) then you will need to provide a final occupation certificate and home warranty insurance documents in relation to the house or the alterations and additions. If the property is a rural property serviced by a septic sewer system then we will need a licence to operate the septic sewer system (obtainable from the Council) and any information about the current operation of the septic sewer system. If the property has a pool or a sauna, then we will need evidence of registration of the pool with the Department of Fair Trading and a current Certificate of Compliance. The property will need to have smoke alarms installed. Contract for Sale Once the solicitor has this information, a Contract for Sale can be prepared and forwarded to the agent for marketing purposes. What happens once the purchaser is found? The agent issues a Sales Advice indicating the details of the sale and any special conditions. The Sales Advice goes to the vendors solicitor and the purchaser’s solicitor/conveyancer and the vendors solicitor prepares a Contract and forwards it to the purchaser’s solicitor/conveyancer. What are the next steps? The next steps involve getting to an exchange of Contract. An exchange of Contract means that the Contract is dated, the deposit is paid, and it is at this point that you have a binding transaction. Most exchanges take place on the basis that the Contract is unconditional however in some cases there may be a cooling-off period. Cooling Off Period The Cooling off Period exists where an agent exchanges a Contract without a solicitor or conveyancer giving a cooling off certificate. In this event then the purchaser has an agreed (at least 5 business days) number of business days within which to change their mind. They can change their mind for any reason and if they do then they lose 0.25% of the purchase price. Many people need to exchange a Contract with a cooling off period so that they can get their finance approved, building and pest reports completed. Once Exchanged Once the Contract is exchanged it will specify the settlement date and then everything is geared towards that settlement date and, if necessary, you will need to be in contact with your bank to arrange for the bank to discharge your mortgage and to give instructions to the bank to deal with your solicitor on settlement.

How is Superannuation handled after you pass away? On your death superannuation is not an asset that you own in the way that you own your house or motor vehicle. Superannuation is actually owned by the Trustee of the Superannuation Fund of which you are a Member and the Fund will set out how your entitlement as a member of that Fund is to be treated on your death i.e. who gets it. Binding Death Benefit Nominations and/or Nomination of Beneficiary It is critical for every person who is a Member of a Superannuation Fund to contact the Trustee of the Super Fund and to complete a Nomination of Beneficiary or a Binding Death Benefit Nomination. The preference is to make it a Binding Death Benefit Nomination which basically means that the Trustee has no alternate other than to pay it in accordance with that Binding Death Benefit Nomination. If you do a Nomination of Beneficiary Form that is not binding and the Trustee still has a discretion to determine the people who are dependents and who should receive your entitlement in the Super Fund. Who should I nominate? Because of the Taxation Rules it is far better to nominate your spouse as your Beneficiary. The spouse receives the entitlement in the Super Fund at the best tax rates. Every other person receives any benefit from a Fund at a higher tax rate.

Conveyancing (buying and selling property) is a major part of our firm and our solicitors are very experienced in this area of the law. If you are looking to buy or sell property then contact our office today on (02) 4821 1588 and make an appointment with one of our solicitors. What should I expect or need to do? The steps required when purchasing a home vary depending upon the nature and the type of property, whether you are a first home buyer, whether there are special rules limiting what you can purchase as a first home buyer, the level of finance available to you, the need for the property to be valued by the lender and approved as satisfactory for the loan that you need, the condition of the property being reviewed such as by a competent friend or getting a pest and building report and most importantly having the Title and the Contract reviewed by your solicitor. Finance available Your search for an appropriate property will always start by understanding what finance is available to you and the nature and the type of property that you want. What property You then look at properties with real estate agents and if there is a property that you like and it is a residential property, the agent must have a marketing Contract available for you or your solicitor to review – get access to that contract if you are really interested in making an offer on that property. Once you have the contract, have it reviewed by your solicitor. Making and offer If your finance appears to be in order and the Contract is in order then you can go through the process of offer and acceptance and see whether a deal can be done at a price you can afford. At this stage, there is no binding commitment. If the deal is struck the agent will either ask you to exchange a Contract with a cooling-off period which is usually 5 business days but often extended to 10 business days (recommended) or he/she will issue a Sales Advice to the vendors solicitor asking that a Contract be prepared and sent to your solicitor. Once this Contract is received it is often made available to your lender so the lender can approve the loan and in the interim period you might get a pest and building report in relation to the condition of the property. Exchanging the Contract – What does this mean? Once you have satisfactory pest and building reports and unconditional finance approved you can move forward to exchange the Contract (the point at which it becomes binding) and you pay the deposit. In some cases you may not be able to pay the usual 10% deposit and you might need to ask for a reduced 5% deposit or you might need to purchase a product known as a deposit bond (a one off fee) which will guarantee the deposit to the vendor. You can discuss this with your solicitor. Types of Title Most properties are Torrens title which is freehold title although there are still some old system freehold titles in Goulburn. There are other versions of Torrens title known as Strata title or Community title and if these apply to the property that you have chosen, you need the specialist advice of your solicitor/conveyancer. You may need to get another search done before you commit to the purchase, that being a strata search (the cost for which is usually about $385). All of the hard work is done in the beginning. Finding the right place, negotiating the price, making sure that the property is in good condition and negotiating any repair issues that might arise is a critical first part of the transaction before committing and exchanging the Contract. Settlement After the exchange the settlement date (when you pay the purchase price and can move in) is set. After exchange and with the help of your solicitor it is all downhill except for the hard work of moving.

Why do you need these? The simple answer is because we do not know what might happen to us. Any one of us could suffer medical events such as a stoke or a head injury which causes us to be unable to read, write or communicate – either temporarily or permanently. If that were to occur how would your financial and property matters (Power of Attorney) and decisions regarding your health and care (Guardianship) be made and who could do that? The simple answer is no one has the legal right to do so. If such an event were to occur then your partner or family would be required to go to NCAT and to seek an Order from the Tribunal appointing a Financial Manager (Power of Attorney) or a Guardian (Health and Care decisions) to act and make these decisions for you. Solution Appoint as Power of Attorney or Guardian a person that you would trust to make decisions on your behalf.  Most usually your spouse or partner. Consideration can also be given to appointing a substitute Power of Attorney or Guardian in the event that your Guardian or Attorney is unable act.

The Courts have no power to resolve the emotions involved in the breakdown of a human relationship. Know this and understand it. Don’t expect that the Court has the power or the ability to solve your problems. The solution is always in the hands of the parties involved and how they handle it. Of course, obtaining good legal advice is a key part of that. I started my working life in 1966 in the Supreme Court in the Matrimonial Causes Office. I was 17 turning 18 and could not believe that there were that number of people getting married, let alone being divorced. It was a very raw introduction to an area of law that I did not expect. In 1968 I moved to a firm in Sydney that undertook, in a specialist way, family law – as it then was. Very quickly thereafter family law changed. The jurisdictions of each State Court were handed to the Commonwealth Government and the Family Court was established with jurisdiction in some Local Courts and Magistrates Courts. This was as a result of the introduction of the Family Law Act by the Australian Government in 1975. Wide, and far reaching, changes were made in the Court systems. They are still evolving. My advice to someone in this sad and difficult position is always guided by the following: Breakdown of relationship – an extremely sad and distressing situation for each party like a death involving grief. Usually, one party is ahead of the other in that process and has already made the decision. When the decision is made known to the other, the grief for that party is even more extreme because they have to then process and live through it. These human emotions produce natural reactions which unfortunately for many of us mean that we want to hit out and hurt the other. Well meaning family members often become involved and offer all manner of advice, some of it not always helpful. Add to this today’s world of social media and you have people offering and or posting all sorts of material which rarely has any use or help at all to the parties involved. My advice so far as is possible do not become involved in this type of behaviour. Don’t respond to what you see, minimise your reaction and to get good advice about your legal rights and what you should do. Can I get a divorce straightaway? No. You need to wait a year from the separation date. You can however deal with property settlement and hopefully reach agreement as to property. To do this you are required to enter into a Mediation process (which can be informal) but with full disclosure to each other your financial circumstances. With the help of Mediators or solicitors you can reach an agreement which can be approved by the Court. Child support can be dealt with immediately. In some cases where parties are dependent upon a supporting parent pension they have no choice as the pension authorities insist that a child support assessment be made. Children. There is no property in children only a responsibility to look after them and to care for them properly. Serious consideration should be given as to how they are affected by people that they love breaking up. They need to know and love each parent even though they are separating. No parents need orders about their children, they simply need to agree on how they will be looked after, by whom and when. Circumstances of children will constantly change as they grow, and the parents need to adapt to that and change whatever arrangements have been in place to meet the new circumstances. There is no black and white or guidebook that says who should look after children, how often and when. It is a matter for the parents and the circumstances but mostly dictated by common sense. They need a stable base, a bed and a home in which they feel secure, and they need to be able to visit another home where they also feel secure. How a separation plays out depends entirely upon the parties and how they react to that separation and how they deal with these very confronting issues. Not easy but with experienced and considered advice you can get through it. Morris Owen. 

Our solicitors are experienced in drafting Wills, providing advice on succession planning and we regularly assist beneficiaries and executors with Estates (including contesting an estate). To make an appointment with one of our solicitors, contact us office today on (02) 4821 1588. Why do I need to make a Will? The simple answer is that it allows you the opportunity to have a say on how your property and assets are to be dealt with in the event of your death and who will manage your property and carry out the terms of your Will. Executor Naming an Executor (and you need to make sure that they are happy to act in this capacity before you appoint them) provides a person with the responsibility to carry out the terms of your Will. While it may sound onerous or frightening, it is not. Most Executors see the solicitors who have the Will and they will get advice about what is required to be done and all of the paperwork, applications and forms will be prepared by the solicitor for the executor and beneficiaries. What to do with my Assets? The first step your solicitor will undertake is to ascertain the nature of your current assets. How are they held and what are those assets? In many cases, where assets are held jointly and/or the house or real estate is held in joint tenancy then the Will actually has no effect upon the death of the first of the couple because the property or bank account will pass automatically to the survivor by survivorship. A proper examination of your assets by your solicitor will assist you in understanding what happens on your death. This is an essential part of the Will making process. Probate In some cases we need to get a Grant of Probate. Do not be concerned by that word - it is not Death Duty. A Probate is simply a document issued by the Supreme Court which certifies that someone had a Will, that they have died, that they have appointed an Executor and the Executor now has the authority of the Court to carry out the terms of the Will, transfer property, close bank accounts etc. What happens if I do not make a Will? If you do not make a Will and you have property that needs a Grant of Probate to enable someone to transfer that property, then we will need to go to the Supreme Court and apply for what is called “Letters of Administration” (the equivalent of a Probate but where there is no Will). Who receives my property if I do not make a Will? There is a statutory list which details who gets your property. This is why you need to make a Will to make sure that your property goes to the persons or people of your choice.

Conveyancing (buying and selling property) is a major part of our firm and our solicitors are very experienced in this area of the law. If you are looking to buy or sell property then contact our office today on (02) 4821 1588 and make an appointment with one of our solicitors. If you are considering a vacant block of residential land to build a home on then the following is a brief check list of the things you need to consider: Do I have the finance to purchase and if so do I need to borrow and what is my borrowing capacity? This needs to be checked with your lender or broker. Firstly, it will depend upon your income and financial commitments as to the level of borrowing and the second step will be once you have located a block, the lender will have the block valued to ensure that it meets the valuation and purchase price guidelines. Generally, a lender will only lend a specified percentage of the value regardless of your earning capacity. Consider when you are wishing to build You might need to factor in the cost of the build with the loan approval process and you will need to understand the lender’s requirements about the build costs. They will most often need plans and a quotation from the builder at least as a guide. In many cases they will not approve the second stage building until a valuer has placed a value on the block of land and the building when completed based on Council approved plans and therefore there is an area of uncertainty before you get the Council approved plans. Generally, you cannot get Council approved plans unless you are the owner and you have already purchased the block. You need to have your Solicitor look at the Contract Why? To make sure that there are not restrictions that would restrict the area upon which you can build and/or that designate the type of building that you build. Restrictions on the use and sewer mains and/or easements are frequent issues in relation to many blocks in many new subdivisions. They are not usually super restrictive but you need to understand them to make sure what you want to build can be built. When you find a Block You then have your solicitor and lender look at the contract and make sure that the above conditions are able to be met and that you can proceed. If you are certain of your finance and that you can build what you want to build then you will be asked to sign the Contract and pay a deposit. The Contract is then exchanged (the point at which it becomes binding) by your solicitor and then settlement takes place in accordance with the contract (usually 6 weeks or thereabouts). Purchase subject to registration of a subdivision. In many cases this is the way in which land is released and there is no problem with this at all other than the fact that you cannot complete the purchase and become the owner until the subdivision is registered. This often means delay between your choosing the block and actually settling and owning the block. The downside here is that if you want to proceed and build immediately you cannot because you will not be the owner until the plan is registered. The critical question is how long it will take until the subdivision is registered. This is the question you need to ask the selling agent or the subdivider. Some subdividers who are very practiced in registering the plans will give you a very clear answer about their plans. Some less practiced subdividers may not be able to give you that assurance. Most contracts have a sunset clause of 6 months but in many cases that sunset clause (the time by which they must register their plan) is 12 months or even longer. Be aware of this clause and make sure that it fits in with your plans. Another thing to be aware of is to understand whether the subdivider can extend the sunset date and if so under what circumstances and for how long?

Conveyancing (buying and selling property) is a major part of our firm and our solicitors are very experienced in this area of the law. If you are looking to buy or sell property then contact our office today on (02) 4821 1588 and make an appointment with one of our solicitors.