A step by step guide to administering a deceased estate

on March 19, 2020 by admin

deceased-estate-service The period surrounding the loss of a loved one is always a difficult time. When all you want is time to grieve, administering a deceased estate can be seriously challenging.

With this in mind, we have put together a guide to help walk you through the basic steps involved in administering a deceased estate:

Determine whether the deceased left a Will

The first step is to determine whether or not the deceased actually made a Will. There are a number of places that the Will may be located, including amongst the deceased’s personal papers, with their solicitor, their bank, or potentially even with their building society.

If there is a Will, it will generally appoint one or more persons as the Executor. It is the Executor’s role to administer the deceased’s estate, so if you are not the person appointed as Executor, you should advise the Executor of their appointment as soon as you possibly can.

If you are unable to locate a Will, it is important to seek legal advice on who the most appropriate person/s to administer the deceased’s estate would be.

Arrange the funeral

The first step in administering a deceased estate is organising the funeral.

If the deceased left a Will, it may specify their wishes relating to funeral arrangements. On a similar note, it is important to check the deceased’s personal papers, as they may have thought ahead and purchased a pre-paid funeral plan.

If there is no pre-paid funeral plan (or there is, but it does not cover the full cost of the funeral), you can take the invoice from the funeral home to the deceased’s bank and request that they arrange payment from the deceased’s bank account.

Obtain the death certificate

Obtaining the deceased’s death certificate is crucial in administering a deceased estate. The funeral director will usually assist you with submitting the appropriate forms to obtain the death certificate. It can take anywhere from 2 – 6 weeks for the death certificate to be issued.

Identify the deceased’s assets and liabilities

The next step in administering a deceased estate is to identity the deceased’s assets and liabilities.

Go through the deceased’s personal papers carefully to obtain details of their personal assets. It is important to keep in mind that this might include assets held solely in their name, as well as those held jointly with other parties. The kind of assets the deceased may own include real estate, bank accounts, shares, superannuation and life insurance policies.

Similarly, you should check to see if the deceased owed any monies.

Apply for a Grant of Probate (if necessary)

Depending on the deceased’s assets, you may need to apply to the Supreme Court of New South Wales for a Grant of Probate in order to administer the deceased’s estate. A Grant of Probate is a document issued by the Supreme Court which confirms both the Executor’s appointment, and that the deceased’s Will is the most recent one. If the deceased died without a Will (or in certain other circumstances), it may be necessary to apply for Letters of Administration rather than a Grant of Probate.

Generally speaking, if all of the deceased’s assets were jointly owned with another person (more often than not, their spouse), a Grant of Probate is not required. If the deceased owned any real estate or held assets in their sole name over a certain value, then a Grant of Probate will be required.

Ideally, the application for Grant of Probate or Letters of Administration should be submitted to the Supreme Court within 6 months of the date of death. If it is submitted later than 6 months, the court will require an explanation for the delay in the application.

Gather in the deceased’s assets

Once you have the Grant of Probate or Letters of Administration, the next step in administering a deceased estate is to gather in all of the deceased’s assets.

Depending on the assets owned by the deceased at the time of their death, this could include closing their bank accounts, obtaining any death benefit payable under the deceased’s superannuation policies, collecting in the proceeds of life insurance policies, either selling or transferring real estate to the respective beneficiaries and similarly either selling shares or transferring those shares to the beneficiaries.

Make sure the deceased’s debts are discharged and tax affairs are dealt with

Once the deceased’s assets have been gathered in, you will need to ensure that any debts owed by the deceased are paid.

You will also need to ensure that that the deceased lifetime tax affairs are up to date. If the deceased lodged tax returns, this means ensuring that all tax returns are submitted up to the date of death, and that any outstanding income tax owing to the Australian Taxation Office is paid.

Depending on the assets of the estate, the estate itself may also need to pay tax. If this is the case, an estate tax return will need to be lodged and any tax owing paid.

Distribute the balance of the estate to the beneficiaries

Once you are sure that all outstanding debts and tax have been paid, you can distribute the deceased’s assets to the beneficiaries in accordance with the terms of the deceased’s Will. If there is no Will, then Coleman Greig will be able to advise you as to who the beneficiaries of the estate will be, in accordance with relevant legislation.

Coronavirus outbreak and the impact on parents with shared custody

on March 19, 2020 by admin

coronavirus and shared custody With people being encouraged to observe social distancing and isolation during the coronavirus outbreak, family lawyers are being asked how best to manage shared custody arrangements.

Legal Aid NSW family law director Kylie Beckhouse said common questions included whether people needed to comply with court orders during the pandemic and how to manage changeovers if schools were to close.

She said people would still need to comply with court orders.

“Talk to the other party, and if you cannot talk to them, try and communicate via a third party to work out a sensible resolution,” Ms Beckhouse said.

Family lawyer Rebecca Bunney said people might feel torn between breaching parenting orders and wanting to limit their children’s movements.

She said parents should try to have a combined approach to keeping the children away from crowds and older people.

Outbreak ‘not an excuse’ to cut another parent out

Ms Bunney said even if there were court orders in place, parents could still agree to vary the orders while social distancing and isolation was being encouraged.

“This is a public health emergency, this is not an excuse to start messing around with your parenting orders just because that is what you want to do.

“The advice to clients would be make sure the other parent is not missing out on time and they get make-up time, so if they miss two nights this week then say to them: ‘It is a credit, you will get to spend that time with them once this self-isolation is over.’

“They [should] get telephone calls with the children — FaceTime is a great option.

“It is not about cutting that other parent out, it is about keeping everyone safe.”

Parents self-isolating children may be shown sympathy

Ms Bunney said she believed in the event a parent contravened court orders, the court may take a sympathetic approach to those that wanted to isolate their children during the pandemic.

“Any parent that is isolating their children due to health concerns should be making every effort possible to continue to allow the child to have a relationship with the other parent, even if it is not face to face,” she said.

“What I would be recommending to people is to put everything in an email, have everything in writing, set out your concerns really clearly and do your very best to have a sensible, practical discussion about this.

“Do your very best to put all of your past hurt and concerns about your former partner to one side and really just focus on where is the best place for your children to be to have their movements limited as much as possible,” she said.

No increase in applications, WA Chief Judge says

In a statement, the Chief Judge of the Family Court of Western Australia said the court had not seen an increase in applications for parenting orders arising from concerns about COVID-19.

Chief Judge Gail Sutherland said it would be wrong and potentially confusing for the public if the Family Court were to produce general guidelines about any impact of concerns about COVID-19 on parenting cases.

“When the court is deciding a parenting dispute, the best interests of the child are the paramount consideration,” she said.

“In any case, the determination of those best interests can be multifaceted and complex and will depend on the individual circumstances of the particular family.

“Like all members of the public, parents with cases before the Family Court should pay careful attention to information and guidance provided by Government and the health authorities.”

The Family Court of Australia has responded to the COVID-19 pandemic by making changes to court operations to accommodate social distancing.

Urgent and priority trials including child-related and family violence matters will remain listed and will be conducted “in the safest manner possible”.

Non-urgent property-only trials may be adjourned, and non-urgent parenting trials will be given similar consideration at the discretion of the judge, while trials or hearings that can be done by telephone will be.

Why everyone should have an advance care directive

on March 14, 2020 by admin

Advance-Care-Directives A move into residential aged care can be stressful enough without having to
confront the task of completing an advance care directive. It feels like an indirect way of saying “you are going to die here so you may as well as tell us how you want to go”.

However, an advance care directive is a great tool and everyone should have
one – regardless of age or health status – particularly if you have a firm
view of what a good quality of life looks like to you and you are relying on
someone to make sure your wishes are carried out.

But the day you enter aged care or hospital shouldn’t be the trigger point for
documenting or even discussing the sort of healthcare you want in the event you can’t speak for yourself.

An advance care directive is something that everyone living in aged care
should have. This may be important in the context of the current concern around COVID-19 and the impact of the virus on aged care homes – including how prepared they are for an outbreak and whether they have the necessary resources and a skilled workforce able to manage any such event.

Apart from vulnerable aged residents in care, aged care workers are just as
likely to contract the virus – although perhaps less likely to succumb to it as
long as they are fit and healthy.

Advance care planning has been slowly gaining momentum in recent years as hospitals and health authorities see the virtue in having a document stating a person’s preferences for end of life or medical treatment.

The third National Advance Care Planning week, being held from March 23 to 27, is an initiative introduced by Advance Care Planning Australia, which is funded by the Department of Health. It is a body that encourages all Australians, regardless of their age or health, to make their future health care preferences known.

The initiative challenges people to discuss what living well means to them
and to consider who they would want to speak for them if they were too sick
to speak for themselves.

An advance care directive is a legal document that can give a sense of certainty and control as your health declines.

However, for an advance care directive to be legally binding, the person completing it has to be competent and it must be signed by a GP or health professional and a witness.

There are different forms to be completed by those acting on behalf of someone who may have lost the capacity to express their wishes, but they won’t be legally binding.

What you do with your completed directive is up to you. You can carry it with you, give a copy to your GP and local hospital, and / or upload it to the central health database My Health Care Record through MyGov.

If you have appointed a decision-maker, they should know that you have an
advance care directive in place and where to find it.

According to End of Life Directions for Aged Care (ELDAC), generally, a health professional must follow a valid directive, even if it instructs them to refuse life-sustaining treatment, which will result in a person’s death.

If they do not follow the instructions, a health professional could be liable under criminal or civil law.

There are some limited circumstances in which a directive does not have to be followed, such as when it is too uncertain to guide decision-making or where circumstances have changed so much since completing the directive that it should not be followed.

Shock approach

The law on this differs across Australia. Starting the conversation about what sort of medical intervention you would want can come in many forms.

There is the shock approach. Just say you were in a coma following a car accident. Would you be OK being kept alive by machines? Or, you have a terminal illness, and if medical treatment could delay your death by two months, would you want it?

It matters how you express your answer in a directive.

CPR is one treatment people are often asked if they want used in case their heart or breathing suddenly stops. It makes sense if there is someone close by who knows first aid and that they should push hard on the chest to get the lungs going again.

Unfortunately, the chest pumping action is not quite what we see in the movies where the recipient jumps to life. Rather, CPR can often be a life-prolonging treatment rather than a quick start to full recovery.

If CPR is not started and done properly within about five minutes of the stoppage of the heart or breathing, there could be permanent brain damage. Even if CPR is started early and done correctly, it often doesn’t work. Fewer than one in five people who receive CPR survive and return to their previous normal life and normal level of function.

Not surprisingly the likelihood of success is much lower for an older person or someone with a serious illness or dementia.

An instructional directive such as “I don’t want CPR” or “I don’t want to be tube-fed” is one way of looking at advance care planning.

Thinking about what is important to you or what living well looks like to you are other conversation starters.

Before you start thinking “it will never happen to me” and “I don’t need one of those”, consider the statistics: 50 per cent of people will not be well enough to make their own end-of-life medical decisions and one-third of us will die before the age of 75, most likely after a chronic illness rather than a sudden death.

Research also shows that advance care planning can reduce anxiety, depression and stress in families. Family members who know a directive is being followed are also more likely to be satisfied with their loved one’s care.

Fewer than 15 per cent of Australians have documented their end of life wishes in an advance care directive. Most of us have a clear view of what is important to live well or what we value in life. Now, all we have to do is share that – preferably in writing; even better if it is outlined in a legal document relevant to your state or territory.

Notorious Australian Incest Clan to Stand Trial

on January 13, 2020 by admin

Charlie Colt, Martha’s brother, was arrested with her at Griffith where they were living together in April this year. Credit: NEWS.COM.AU

In the decades before they were found living in a squalid bush camp and accused of inbreeding and generations of incestuous sex, the Colt family moved freely from state to state, often earning money as travelling musicians.

But the law has finally caught up with them. Eight members of the alleged incest family are now preparing standing trial, starting in the NSW District Court.

Family patriarch Tim Colt (a court-appointed pseudonym to protect the identities of children) led a troupe of musicians made up of his children, including son Charlie and daughter Martha.

Tim and his wife June, who had emigrated from New Zealand, had seven children. Police allege four of whom would carry on the family tradition of interbreeding.

Tim is believed to have fathered several of his the 13 children of his daughter Betty, with whom he allegedly began to have sex after she turned 12.

June was the product of a sexual relationship back in New Zealand between a brother and sister.

Travelling from state to state, they had lived in remote parts of Western Australia, South Australia when, in Victoria in 2001, June died.

They moved back to South Australia, then Western Australia where Tim Colt died in 2009.

colts-incest-family-tree The Colt clan’s world was torn apart on July 18, 2012 when a posse of police, and legal and welfare authorities arrived at the family farm and removed twelve of the Colt children.

By then, around 40 adult and child members of the family were living together on a remote and filthy plot in the hills behind the NSW rural town of Boorowa.

But it came to an end when one of the children attending the local school told classmates his sister was pregnant and they didn’t know which relative was the father.

Police and case workers visited the farm in NSW’s Hilltops region and were horrified by what they found.

The 40 Colts lived in putrid conditions in two caravans, a garden shed and a larger shed containing two tents on an un-sewered block without running water strewn with hazardous wiring.

The living quarters and cooking facilities were filthy and strewn with rubbish, and the children were dirty, wore grubby clothes, were unable to make eye contact and spoke unintelligibly.

They had fungal infections, rotten dental hygiene, and used the bush as their toilet.

Some had facial mis-alignments, impaired walking and had never used a toothbrush or toilet paper.

Taken into care, the children began telling stories of highly sexualised activity back at the farm or disclosing disturbing pastimes such as mutilating the genitals of pet animals.

Colt family members moved to parts of NSW, South Australia and Western Australia.

Almost six years after the family was split up, police arrested eight of them in a three-state swoop.

Betty Colt is facing five charges of making a false statement on oath amounting to perjury, which relate to her allegedly trying to conceal the paternity of her children.

Betty’s sister Martha is charged with six counts of perjury.

Betty’s sister Rhonda and daughter Raylene also face one charge each of perjury.

Brother Charlie Colt will go on trial at a later date on 27 charges, including six of sexual intercourse with a child under 10 years and 12 of inciting aggravated indecency of a person under 16 while in authority.

Three of Charlie’s male relatives, including two men believed to be his nephews, will face court as his co-accused.

Cliff Colt faces 21 charges and Roderick Colt 19 charges, both accused of 12 counts of inciting aggravated indecency of a person under 16 while in authority.

Another male Colt faces two charges of incest with a person around 16 years old under the authority of the alleged offender.

The trials of four of Tim Colt’s children and four grandchildren will hear testimony of family members, many of whom were children at the time of the allegations.

Also giving evidence will be a sister who allegedly had three children with her brother.

4 things you need to know about Child Custody disputes

on January 10, 2020 by admin

1. You have to attempt to mediate with the other parent

Before you, or the other parent, can commence 4-things-you-need-to-know-now-about-Child-Custody-disputes Court proceedings about Child Custody, there is a legislative requirement that you attempt to participate in Family Dispute Resolution. This is a special type of mediation focused on helping separated parents reach agreement about future arrangements for the children.

If there has been family violence, you may not be able to participate in Family Dispute Resolution, or it may not be practicable. Also, if for some reason you need to urgently seek the Court’s assistance, or there is a child who is at risk of harm, there are exemptions to the requirement for Family Dispute Resolution.

In all other cases, you will need to obtain a certificate, known as a Section 60I Certificate, from a registered Family Dispute Resolution Practitioner confirming that you have participated in that process, prior to the Court accepting your Application.

Across Australia there are a number of private Family Dispute Resolution Practitioners who can assist.

2. You don’t have to be a parent to start Court proceedings in a Child Custody Dispute

The relevant legislation outlines exactly who may bring parenting proceedings in the Family Court of Australia or the Federal Circuit Court of Australia about Child Custody. Such people include:

either or both of the child’s parents;
the child;
a grandparent of the child; and
any other person concerned with the care, welfare or development of the child.

If you are a non-parent considering starting Court proceedings about a Child Custody dispute, it is recommended that you obtain expert advice from a family law lawyer about the specific matters the court will look at to determine whether you have standing to bring an Application.

3. Court is not your only option

If there is any possibility at all that you, and the other parent, can come to an agreement about future arrangements for your children, you should try to avoid Court proceedings at all costs.

Of course, in some situations, Court proceedings are unavoidable. However, it is important to understand that Child Custody disputes before a Court often becoming very costly, lengthy and messy. Parents rarely come out the other side with an improved co-parenting relationship. The other thing to remember is that you and the other parent are basically handing over the outcome of the dispute to a Judge. You both lose control of how things may go, and often people are not happy with the direction that the Court may take.

If you think that Court proceedings can be avoided, you and the other parent should keep control of the outcome, by doing your best to come to an agreement. You can attempt to reach agreement through informal negotiations, with or without the involvement of lawyers, and through mediation, either private mediation, or Family Dispute Resolution.

4. It’s all about the best interests of the children

In determining what arrangements to put in place in Child Custody disputes, the Court’s primary concern is that the children are being protected from physical or psychological harm, and that proposed arrangements are in the child’s best interests.

There are many factors that the Court will look at when determining what is in a child’s best interests, but it will always come back to a consideration of what is in the best interests of the child, not the parents.

A child’s best interests may not necessarily correlate with a child’s wishes. The Court may consider a child’s wishes, but it is in no way bound to uphold those wishes. The Court is also not bound to agree with either parent, and can only make Orders if it is satisfied that the child is not at risk of physical or psychological harm, and that the Order are in the child’s best interests.

Family Court report writer charged with sexually abusing three children

on January 1, 2020 by admin

An accused paedophile has been used as an expert by the Family Court in custody disputes that involve allegations of child sexual abuse.

The psychologist, who has since been charged with sexually abusing three children, was appointed by the Family Court to make custody recommendations in cases where one parent had accused the other of sexual abuse.

One of Australia’s foremost family law experts said it could open the way for custody rulings involving the expert to be overturned.

One mother, who was sent to the psychologist in 2013 after alleging her three-year-old daughter was abused by her father, told the ABC the psychologist had made her feel extremely uncomfortable.

Greta* said he implied she may not be satisfying her husband sexually and even if he had abused their daughter it did not mean he couldn’t have a relationship with the child.

“He was kind of overly physical with me. He kept touching my arm and my leg. It made me feel creeped out. He said weird things. He kept telling me that he knew about real paedophiles and that they would show up on [psychometric] tests,” she said.

“My first impression was ‘this isn’t going to go well’.”

The psychologist’s family report was never provided to the court.

However, in another case the psychologist’s report recommended the child “continue to live with [the father]” after the mother raised allegations of sexual abuse, saying he “found no significant evidence” the abuse had occurred.

At the time of the family report interviews the psychologist had not been charged with any offences. It is alleged the offending occurred many decades ago.

University of Queensland professor Patrick Parkinson, said a child sex abuse conviction could “absolutely” give a parent grounds to seek to quash custody rulings linked to the psychologist.

“The fact that a [an expert] has been convicted would in my view amount to, in itself, sufficient changed circumstances for the court to look at the case again — in the light of the current circumstances of the child.”

Even the charges, coupled with other changes in circumstances could form grounds to challenge a custody ruling, he said.

The psychologist remains on bail and the matter has been adjourned to October.

The psychologist cannot be identified for legal reasons.

When asked what measures it had taken to ensure any expert charged with criminal offences was not used by the court, a spokeswoman said the court could not comment.

Sydney family sent to Melbourne for family report

The family law system has come under heavy scrutiny after recommendations from the Australian Law Reform Commission (ALRC) in March that included sweeping changes and a call to abolish the federal system altogether.

The ALRC recommended the Family Court introduce mandatory accreditation for family report writers, otherwise known as single expert witnesses, after concerns over the quality of their reports and qualifications.

In June, the ABC revealed a Sydney psychiatrist was the subject of numerous complaints to the Health Care Complaints Commission (HCCC), that would not be investigated after the HCCC stated it did “not have the power”.

The Family Court stated on April 1 that the psychiatrist was not among its in-house report writers and it did not keep track of private report writers used in cases.

However, the ABC has seen documents that show the psychiatrist was still being considered by parents as a report writer in May.

Lilly* was one of the parents who lodged an official complaint against the psychiatrist last year and said her ex-husband had requested a family report from the psychiatrist despite the many complaints made against him.

In response, the court ordered the Sydney-based family, including three children, travel to Melbourne to attend another report writer at the parents’ expense.

Lilly said she felt bullied into signing the consent orders that required her to attend a report writer in Victoria.

“I requested more time be made available to seek out a different report writer. I indicated I could not afford the airfare or the accommodation.”

The ALRC said a national training program for report writers is being worked on in consultation with the Association of Family and Conciliation Courts (AFCC) and the federal Attorney-General’s Department.

However, an influential AFCC member involved in representations to the Government was, just months ago, cautioned by the medical watchdog for breaching a parent’s privacy including by running therapy in a wine bar.

A spokesman for the Attorney-General said the department was not involved in the development of the training but was being kept informed by the AFCC.

He referred questions back to the AFCC and the Family Court.

The AFCC did not respond to specific questions about the training, which is not mandatory for court-appointed experts.

But AFCC board member and former Family Court chief justice Diana Bryant emailed the ABC a brochure of an AFCC advertisement promoting “Family Report Writer Training”.

On the AFCC website, the three introductory training modules are listed at $400 each.

The site promoted the 2020 “masterclasses” being held in Singapore, Hong Kong and Japan.

A Family Court spokeswoman said it was unable to comment on the training program.

*Names have been withheld for legal reasons.

Equal parental responsibility is failing children, inquiry hears

on December 29, 2019 by admin

family-court Australia’s family law system is failing to protect children by misleading separated parents into believing their children have to spend time with their ex-partner, even if they are dangerous, one of the nation’s largest children’s charities has warned.

Save the Children Australia chief executive Paul Ronalds said in his organisation’s submission to the parliamentary inquiry into family law that “Australia’s family law system is still not dealing with child protection issues adequately or appropriately”.

Separated parents are entitled to a presumption of “equal shared parental responsibility” under Australian law, which means courts start from a presumption that each parent gets an equal say in major decisions about their children, not equal time with them.

But the Australian Law Reform Commission, which delivered a major report on the family law system last year, found the provision was being misinterpreted to mean both parents should see the child for the same amount of time.

“The widespread nature of that misunderstanding has a number of effects, including leading unrepresented parties to believe they have no choice but to agree to equal time and to enter into informal agreements based on a misapprehension of the law,” the ALRC said in its final report.

Mr Ronalds said: “The presumption is harming children by leading to them being placed in contact with parents where such contact is unsafe.”

The presumption does not arise in cases of abuse or violence, but Mr Ronalds said the family law system was also bad at evaluating those claims.

“Our concern is that the system is still failing to listen to the very people it is entrusted to represent and protect – children,” Mr Ronalds said.

The family law inquiry, one of several recent examinations of the contentious area of law that governs topics including what happens to children when a couple gets divorced, was established by the government in September after pressure from One Nation leader Pauline Hanson.

Professor Patrick Parkinson, a family law expert and dean of the University of Queensland law school, said for the inquiry to be effective, it had to build on dozens of other family law reviews that had been left to gather dust.

“A vast number of reports have been written about the family law system over the last 20 years,” Professor Parkinson said in a submission to the inquiry. “Some reports get no governmental response at all. Others are cherry-picked.

“There is no reason to believe that the report of this committee will suffer any different fate from the previous ones unless it offers a thorough review of the many wise recommendations that have been previously made, and thereafter not implemented.”

The ALRC’s report from last year cites 22 state and federal government-sponsored reports on different aspects of family law in the past decade.

The inquiry is due to report in October 2020.

‘Do not resuscitate’ tattoo creates medical dilemma: What would Australian doctors do?

on December 25, 2019 by admin

The man arrived at the hospital unconscious, without identification, with a high blood alcohol level.

He was 70, had a history of lung disease, heart problems and diabetes, and three words tattooed in big, black letters across his chest: “Do not resuscitate”.

Doctors at the Jackson Memorial Hospital in Miami, Florida weren’t sure how to proceed.

The message on his chest was clear, and has his (presumed) signature underneath, but they had no way of knowing if the tattoo was sincere, or done impulsively.

Efforts to contact the man’s next of kin were unsuccessful. Doctors administered some treatment to increase his level of consciousness, but he never become responsive enough to speak and discuss his end-of-life wishes.

“We initially decided not to honour the tattoo, invoking the principle of not choosing an irreversible path when faced with uncertainty,” they wrote in a letter published in the New England Journal of Medicine on Thursday.

“This decision left us conflicted, owing to the patient’s extraordinary effort to make his presumed advance directive known; therefore, an ethics consultation was requested.”

After reviewing the case, the ethics consultants advised the doctors to honour the man’s “do not resuscitate” tattoo.

“They suggested that it was most reasonable to infer that the tattoo expressed an authentic preference … and that the law is sometimes not nimble enough to support patient-centred care and respect for patients’ best interests,” they wrote.

The man’s health deteriorated, and he later died, without being resuscitated.

Before he died, medical staff discovered he had in fact filled out a form in advance expressing his end-of-life wishes, which were consistent with his tattoo.

What would happen in Australia?

Different state and territories have different laws when it comes to advance care planning and legal directives.

There are, however, common principles, including respecting the right of an adult who has the mental capacity to plan in advance for their health care.

“The community ethic is that the autonomous decision of the patient should be heeded by a medical team,” said Ian Olver, oncologist and bioethicist at the University of South Australia.

“But you’ve got to be able to actually ascertain what that decision is.”

To do this, under common law, doctors must be satisfied of three things: that a person was competent when they made the directive; that it was an informed choice; and that it applies to the situation they’re currently in.

“The doctor has to try and determine what the patient’s wishes are … so in this case, looking for relatives, looking for their GP, looking for documentation to try and reinforce the directive was a very sensible thing to do,” Professor Olver said.

While doctors as Jackson Memorial Hospital sought advice from a medical ethics team, Professor Olver said that was unlikely to happen in Australia.

“A lot of the hospitals have treatment ethics committees where they set ethical policy. But it is uncommon for there to be an ethicist on call for a situation like this.”

Professor Olver said it was more likely doctors would have to make a decision, especially in emergency situations.

“You’ve got to make a call, and if there’s sufficient uncertainty, I think the call might be to do what you need to do medically, and you sort it out later.

“But in other cases where, perhaps the chance of ‘[successful] resuscitation is very small and the patient’s wishes seem to be clear, the ethos of the community is to heed the patient’s wishes,” he said.

Making end-of-life wishes clear

While uncommon, Professor Olver said the US case was worth examining to see what improvements could be made to advance care planning processes.

“It highlights where we perhaps need to do better, to make sure patient’s wishes are known and communicated,” he said.

Making an advanced care plan is a good place to start, and it’s important to be specific, and to disseminate it widely, he said.

“It’s worth your GP knowing if there is a copy, and certainly relatives ought to have a copy.”

10 Ways an Ex Can Hide Money From You

on December 25, 2019 by admin

Financial abuse is a common issue for many ex-couples after separation and through the family court.

In the midst of separation or divorce, some male and female ex-partners go to extreme lengths to hide money in order to reduce their future liabilities to the other parent/ex-partner or children of the relationship.

Below are 10 common ways an Ex can hide money from the other party

Depositing money in trusts or in children’s accounts that the other parent has no control over
Manipulating joint Self-Managed Retirement Funds
Drawing money on a redraw mortgage
Declaring bankruptcy to avoid payment
Minimising income by deferring salary or bonuses until after settlement
Minimising bank account balance by ‘lending’ money to friends, overpaying creditors (credit cards, tax, etc.) or buying expensive items that can be sold later
Stockpiling cash
Hiding personal assets via a complex web of companies
Using trust structures
Hiding funds in offshore foreign bank accounts

Special Note about non-disclosure in Family Court

The Family Law Act requires full and frank disclosure of the financial affairs of both partners who have to swear an oath and set out a complete statement of income, expenses, assets, financial resources and liabilities. The duty of disclosure is ongoing, so if there are changes in parties situations or facts come to light that were hidden even years after orders were made, then it can be a basis for asking the Court to change orders. The court in recent years has been very harsh on people who have not fully and frankly disclosed their proper financial position.

Special Note on Hidden Asset Search

A hidden asset search involves the use of a forensic accountant or private investigator who can undertake certain searches to help uncover the true status of your spouse’s assets. There are three main assets searches that can be performed: a Brokerage Account Search; a Bank Account Search, and a Public Assistance Search. The Brokerage Account Search is used to locate any stocks, bonds or securities that may be owned; a Bank Account Search can locate all bank accounts the person may have in their name and which bank they are with, and a Public Assistance Search can identify any payments or benefits the person may be receiving from government departments such as Centrelink or Family Assist.

Finding where the money has gone

If you have grounds to suspect your ex-partner has hidden a lot of money and other assets, you could use a forensic accountant to assist you to find it. This service can be expensive, but the accountant should be able to advise whether it is worth pursuing. You can also enquire about a ‘no win, no fee’ arrangement. Forensic accountants work alongside your lawyer. Find a forensic accountant through your lawyer, or search the Certified Practicing Accountant Australia website.

Australian man faces jail in Japan while searching for his abducted children

on December 22, 2019 by admin

Freelance journalist Scott McIntyre with his two children in Japan.

An Australian man faces the prospect of three years in jail in Japan after a desperate bid to track down his two young children, who were taken by their mother in May without his consent.

Scott McIntyre, an Australian freelance journalist based in Tokyo, has been charged with illegal entry, which under Japanese law carries a maximum penalty of three years in jail, or 100,000 yen ($1327).

“I’m desperately worried for Scott’s future,” said Mr McIntyre’s mother Lynne. “He’s been through so much already. If he gets three years it will completely destroy him.”

Mr McIntyre, 45, has been living in Tokyo with his wife since 2015. After the breakdown of their marriage, the children went to stay with their grandparents for a night and never returned.

Friends say he has not heard from his wife or children since and does not know their whereabouts. Mr McIntryre’s wife did not respond to requests for comment.

In late November, Mr McIntyre allegedly gained access to the apartment block where his parents-in-law live. It’s thought he then knocked on their door, requesting information about his children.

The police were called and he was arrested. Since then, Mr McIntyre has been held in Takaido detention centre, in west Tokyo, where he is allowed one shower every five days. His cell is lit for 24 hours a day and he cannot wash his clothes.

“He gets one 20 minute visit a day,” said friend Catherine Henderson, who visits him regularly.

“We take stuff for him like clothes and books, but they are often refused. There is no privacy, even for the toilet.”

Mr McIntyre was sacked as a sports reporter by SBS in 2015 after he published tweets about Anzac Day which were deemed “inappropriate” and “disrespectful” by then SBS boss Michael Ebeid and then communications minister Malcolm Turnbull.

He commenced unfair dismissal proceedings against SBS and the parties settled in 2016.

Japan is one of the few developed nations in the world that does not recognise joint custody upon separation. Even if a court order does provide for shared custody, visitation rights are routinely ignored.

Scott McIntyre says he has not seen his children since his wife took them to stay with their grandparents in Japan.

There are no official figures, but it’s thought up to 20 children every year are snatched from Australia and taken to Japan without the consent of one parent.

“Worldwide, the figure is closer to 1150,” said child recovery expert Colin Chapman.

“Japanese law makes it very hard to get those children back, which is why Japan has become known as a black hole for child abduction.”

Japan is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which provides a legal process through which a parent can seek to have their child returned to their home country.

But Japan has been widely criticised for non-compliance. In any case, the convention only applies to international abductions. It is of no help to Mr McIntyre, whose children were abducted within Japan.

Embassy officials have visited Mr McIntyre in detention. It’s expected he will face court in January. Prime Minister Scott Morrison will also be in Japan in January, to discuss a defence cooperation agreement.

“While he’s there we’d like the Prime Minister to raise this issue of child abduction with the Japanese government,” Mr McIntyre’s father Laurie said.

“Scott’s not the only person this has happened to. Other Australian kids have gone missing in Japan. Someone has to do something about this.”