If you are unable to make a decision on your medical treatment, a health practitioner may need the consent of your Medical Treatment Decision Maker (MTDM) before they provide treatment.
Appointing a person to make medical decisions for you can be just as important as appointing an attorney to act for financial and personal matters. In Victoria, unlike some other Australian States, a MTDM is appointed under a separate document to that of a financial or personal attorney. The relevant legislation is the Medical Treatment Planning and Decisions Act 2016 (Vic) (Act).
As part of an estate planning matter, we talk to our clients about the importance of having the right people making decisions for them if they were to lose capacity – this includes consenting to or refusing medical treatment. Here are the 5 most commonly asked questions on matters relating to medical decisions.
You can appoint an adult person to make medical decisions for you provided you have decision making capacity at the time of the appointment. You may decide to appoint one of your family members, another close relative or a friend. Your MTDM should be someone who you trust, can communicate effectively, and who is willing to accept the responsibilities of the role. Your MDTM does not need to be the same person you appoint as your financial and personal attorney.
Only one person can act as your MTDM at any time. If you want to appoint more than one person to act, the decision-maker is the first person listed who is available, willing, and able to make the decision at the relevant time.
The appointment of a MTDM must be made in writing in the prescribed form. It must be executed and witnessed in accordance with the requirements of the Act. A person appointed as your MTDM must also accept their appointment.
If you do not appoint a MTDM, or your appointee is not available and willing and able to make a decision for you, then a guardian appointed by the Victorian Civil and Administrative Tribunal (VCAT) with the power to make medical decisions can act for you.
If there is no VCAT appointed guardian, your MTDM will be the first of the following who is in a close and continuing relationship with you:
A MTDM must make the medical treatment decision that they believe is the decision you would make if you had decision-making capacity, subject to any conditions or limitations specified in a MTDM document. This includes consenting to treatment on your behalf, or refusing treatment. Your MTDM must consider:
There are some exceptions to consent. Consent is not required from a health practitioner in the event of an emergency to save your life, prevent serious damage to your health or prevent you from suffering significant pain or distress.
A MTDM also cannot:
If you have capacity and you decide that one or more of the people you have appointed as your decision maker is no longer appropriate, you can revoke the appointment of your MTDM. You can do this by:
VCAT also has the power to revoke an appointment of a MTDM.
If you revoke your MTDM, you should inform your MTDM and any people who know of the appointment, such as your health practitioner or hospital.
In Victoria, you can make an advance care directive. This is a document where you can set out your binding instructions or preferences and values in relation to your medical treatment.
You can give an advance care directive if:
An advance care directive must comply with certain formal requirements. To be binding, the directive must be in writing, contain certain particulars, be signed by the person giving it and witnessed by two adults, one of whom must be a medical practitioner.
Some of the matters which you can address in an advance care directive are:
Any statement about palliative care in an advance care directive is regarded as a values directive. You cannot provide directions on voluntary assisted dying in an advance care directive.
You can amend or revoke an existing advance care directive, or make a new advance care directive should you change your mind or wish to record further directions.
Appointing a MTDM allows you to control who will make medical decisions for you if you are not able to make them yourself. Your estate planning should incorporate a discussion on medical treatment decisions and the preparation of documentation to appoint a decision-maker. We can advise on, and prepare a MTDM as part of attending your estate planning.
Please contact us for more detailed and tailored help.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.
Children are particularly vulnerable to online harms. The increasing profile and powers of the eSafety Commissioner under the Online Safety Act 2021 (Cth) is partly designed to address this vulnerability, as are some of the possible amendments to the Privacy Act 1988 (Cth) (Privacy Act). Children increasingly rely on online platforms, social media, mobile applications and other internet connected devices in their everyday lives. While acknowledging the many benefits these services provide to children and young people, there is equally a concern that thousands of data points are being collected, including information about their activities, location, gender, interests, hobbies, moods, mental health and relationship status.
The 2023 Australian Community Attitudes to Privacy survey results showed:
The Government Response to the Privacy Act Review has provided more clarity on the likely changes to the Privacy Act to better protect children’s privacy.
Amendments we are likely to see include:
Whereas the Government Response adopts only 38 of the 116 recommendations from the Attorney-General’s Department’s February Report, the area of children’s privacy is one space where many of the recommendations are agreed to.
Being committed to working with organisations on child safety and the safeguarding of other vulnerable Australians, Moores is well positioned to empower your organisation to implement these privacy changes for organisations who work with children and vulnerable Australians. It is most commonly individuals who are already vulnerable who face greater risks of harm from interference with their privacy. More details about how we can help with privacy and data security is here.
The Privacy Act Review has been a work in progress since 12 December 2019, initially in response to the Australian Competition and Consumer Commission’s Digital Platforms Inquiry. Throughout this journey we have endeavoured to keep our community up-to-date, through our article series:
Now we have the next step in the process: the Government Response to the Privacy Act Review which responds to the Attorney-General’s Department Report published in February 2023 and adopts 38 of the 116 recommendations. Other recommendations are agreed to “in principle”. The Government Response has narrowed proposed amendments into five categories:
We explain these categories in more detail below.
This means changing the scope and application of the Privacy Act 1988 (Cth) (Privacy Act) to apply to a broader range of information and entities. For example:
The Government agrees in-principle that the small business exemption should be removed in light of the privacy risks applicable in the digital environment.1
However, the small business exemption will not be removed from the Privacy Act until further consultation has been undertaken and supports are afforded to small businesses to assist compliance.
We’ve written previously about how privacy-by-design can help future-proof your operations for subsequent privacy breaches or data breaches. Now we have an official statement that:
The Government agrees in-principle that privacy settings for online services should reflect the ‘privacy-by-default’ framework of the Privacy Act.2
This is part of the possible amendments that collection, use and disclosure must be fair and reasonable in the circumstances, distinct from other requirements to collect or disclose such as consent. A fair and reasonable threshold for collection, use and disclosure is said to partly address “dark patterns” which are designs in systems and processes to nudge users towards consenting to more privacy intrusive practices.
An uplift in protections will likely also see more detail included in the Privacy Act as to what reasonable steps to secure personal information entail; that is, it entails both technical and organisational measures. Retention is another feature:
The Government agrees in-principle that entities should be required to establish their own maximum and minimum retention periods for personal information they hold and specify these retention periods in privacy policies.3
Some organisations will already have strict retention policies, such as schools in Victoria who are required to adhere to the Public Records Office Victoria Recordkeeping standards under Ministerial Order 1359. Another major possible change is the reduction in the notification period under the Notifiable Data Breach Scheme to 72 hours. Again, this is only agreed to “in principle” and further consultation is flagged as the next step.
This includes introducing definitions of key terms, such as collection, disclosure and consent. Another key change would be the introduction of a distinction between controllers and processors of personal information. These are terms found in the European Union’s General Data Protection Regulation (GDPR); generally considered the global gold standard in privacy protections for individuals. Aligning with the GDPR is acknowledged to “reflect the operational reality of modern business relationships, and reduce the compliance burden for entities acting as processors”.4
To further support international trade and business, the Government agrees a mechanism should be introduced to prescribe countries with substantially similar privacy laws. This replicates the function of adequacy decisions under the GDPR.
Australians overwhelmingly (84%) want more control over their data. While privacy policies and collection notices are intended to provide individuals with transparency, consultation revealed concerns that privacy policies and collection notices are often complex, lengthy, legalistic and vague. To address this, the Government agrees in-principle that:
We may also see the introduction of individual rights in addition to the existing rights of access and correction. These could include the right to an explanation of how information is used and the right to require deletion (i.e., similar to the GDPR’s right to erasure). Individuals could also be given the ability to bring legal action under a statutory tort for serious invasions of privacy, which would be based on a model proposed by the Australian Law Reform Commission in 2014.5
While we saw increased penalties for serious interference with privacy introduced in 2022, there is a possibility for:
There are a lot of proposed reforms, but no Bill before Parliament as yet. At this stage, we recommend organisations focus on getting their house in order to prepare for changes to the law. One place you can start is to reflect on what data you collect and where you store it. We can help with this first stage through a Privacy Audit, designed to map your information handling practices and identify areas for improvement. We can work with you to address any more specific concerns your may have to design a tailored product for your organisation. More details about how we can help with privacy and data security is here.
1 Australian Government, Government Response Privacy Act Review Report, (28 September 2023) page 7.
2 Australian Government, Government Response Privacy Act Review Report, (28 September 2023) page 9.
3 Australian Government, Government Response Privacy Act Review Report, (28 September 2023) page 10.
4 Australian Government, Government Response Privacy Act Review Report, (28 September 2023) page 17.
5 Australian Government, Government Response Privacy Act Review Report, (28 September 2023) page 21; Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era (ALRC Report 123) 3 September 2014.
The statistics are in. The Office of the Australian Information Commissioner (OAIC) conducted a survey of Australians this year and the results show privacy is a growing concern and priority for Australians.
Privacy is inherently about trust and identity. By sharing personal information about themselves with your organisation, individuals are placing trust in your organisation that you will respect their identity – our information or data is an extension of self-expression and identity.
To grow this trust, we recommend organisations:
As a starting point to take steps in making privacy a priority, you can:
We know you are busy. We know many of our clients include the role of Privacy Officer in a broader risk and compliance role. We can support you with directions of how to start through our online publications – such as our Privacy Toolkit – or we can take on these projects for you. This can be a full privacy audit that will start with mapping your data assets, reviewing your information handling practices and processes, and proposing changes to systems and policies. Alternatively, we can discuss what other projects may look like for your organisation and design a tailored offering to your needs. More details about how we can help with privacy and data security is here.
1 The 2023 Australian Community Attitudes to Privacy Survey
2 For example, the Health Records Act 2001 (Vic).
Update: December 2023 – The changes to the vacant residential land tax (VRLT) laws have now passed into law, with the new bill receiving Royal Assent on 12 November 2023. Read more in our article here.
The Victorian government has this week announced significant changes to the vacant residential land tax (VRLT), which could have major impact on owners of holiday homes.
To avoid incurring an unexpected land tax liability, anyone owning a holiday home in Victoria will need to give careful consideration to the new rules and plan accordingly.
VRLT is an annual tax collected by the State Revenue Office. It is separate and additional to standard land tax.
VRLT is calculated as 1% of the capital improved value of the property – this means a property with a capital improved value of $1.5m would incur a VRLT bill of $15,000 annually.
It is important to note that this is different to standard land tax, which is calculated on ‘site value’ (unimproved value).
Currently, only properties in the inner and middle suburbs of Melbourne are caught by the VRLT net.
Properties in those areas are liable for VRLT in any calendar year where the property ticks all of these boxes:
The exemptions from VRLT include the following scenarios:
Importantly, residential properties owned by companies, organisations and trusts are generally not eligible for the first two exemptions.
The Government is proposing to extend the current VRLT rules to the whole of Victoria with effect from 1 January 2025.
Further amendments will also be made to expand the type of land which will be subject to VRLT.
Some additional VRLT exemptions have been proposed, including:
These further amendments and additional exemptions are scheduled to come into force on 1 January 2026.
If the proposed changes are passed by the Parliament, there are a lot of people who could potentially receive a hefty and unexpected VRLT bill in 2025.
To reduce the chances of being one of those people, follow these tips:
The team at Moores is across the complex issues raised by the VRLT changes, and would be glad to help you or your clients to navigate the new rules.
We can assist with:
Please contact us for more detailed and tailored help
In the ever-evolving landscape of legal practice, establishing meaningful connections with clients, particularly elderly ones, is paramount. Online communication with elderly clients demands patience, empathy and active engagement. For good reason, lawyers are often hesitant to obtain instructions from elderly clients online. 1 in 6 elderly Australians are subject to some form of abuse – financial abuse being the most common.
Below are five strategies for lawyers to foster strong relationships with elderly and other vulnerable clients in the digital age, whilst effectively managing the inherent risk of taking instructions and signing documents online.
In the digital age, the essence of human connection should never be lost. By integrating these strategies into online interactions and your practice generally, lawyers can establish genuine, respectful, and trusting relationships with elderly and other vulnerable clients. Through active engagement, legal professionals can ensure that engaging with elderly clients in an online environment, whilst not risk-free, is an avenue that should be embraced.
The content above was part of a seminar hosted by Leo Cussen where Max Ezerins and James Dimond of Moores presented on the topic: “Tips on how to detect capacity issues in an online environment vs in person”.
For expert advice or guidance regarding Elder Financial Abuse, please do not hesitate to contact us.
Following on from our recognition as a First Tier Law firm in Victoria for both ‘Wills & Estates Litigation‘ and ‘Wills, Estates & Succession Planning‘, we are proud to share that Practice Leader, Lachlan McKenzie, has been featured as a ‘Leading Wills & Estates Litigation Lawyer’ in the Doyle’s Guide national rankings.
The 2023 listing details solicitors practising within the areas of Wills & Estates Litigation, Disputes and Contested matters across all Australian legal markets.
This recognition also marks the seventh consecutive year that Moores has featured in the national rankings.
For more information or to speak with one of our experienced lawyers, please do not hesitate to contact us.
A cornerstone of our law is the presumption that adults have legal capacity to make their own decisions unless proven otherwise. But because decision-making capacity is issue and decision specific, this can mean that someone may have decision-making capacity for some easier decisions, such as getting married, but not for other more complex ones, such as making a will, leading to some unusual outcomes.
For example: Noah is a widowed elderly gentleman living in a nursing home. His estate plans were set up years ago and his will leaves his estate to his two sons. These days Noah has dementia and is losing decision-making capacity, however, he finds companionship in the nursing home and marries Allie. A lovely way to live out his days with his new wife. However, the act of Marriage has now voided Noah’s will.
Noah has the capacity to get married but does not have capacity to make a new will. This means Noah’s long standing wishes in his will are disregarded. When Noah dies, based on the laws of intestacy (the laws that apply when someone dies without a will) much or all of his estate passes to his new wife, Allie.
Because of the significant ramifications that can flow from someone having or not having capacity to make certain decisions, it is critical that the correct evidence is applied to the correct legal tests wherever a decision is proposed or made where a person’s capacity is in some doubt. Making sure the right evidence is applied to the right test can help ensure an elderly or disabled person’s autonomy is preserved and respected and can avoid costly future legal disputes if a particular decision or transaction is disputed after the fact.
Generally, a person’s decision-making capacity in relation to any particular decision is assessed based on:
Capacity is a legal concept rather than a medical one, and different legal tests are applicable in different situations. However, assessing capacity is complex and in making capacity assessments, legal practitioners will often interact with medical practitioners and specialists such as a neuropsychologists to reach a conclusion.
Capacity is also fluid and can fluctuate. A person may have capacity on one day but not on another, or a person might have capacity in the morning but not later on in the day (this is particularly prevalent in the elderly).
Obtaining high-quality evidence at the time of a potentially contentious transaction can avoid future disputes that can drag on for years where costs may stretch into the triple figures. Too often, we see brief “one liners” from a person’s General Practitioner which might claim the person does or does not have decision making capacity but is of little evidentiary value because its not clear how they arrived at that conclusion, what decision their assessment relates to and what test they applied to get there.
Some signs that may indicate a person in your life’s decision making capacity could be in doubt include:
If you have concerns about a person’s capacity to make certain legal decisions, it is important that that the proper assessments and correct tests are completed and you get professional advice about the thresholds and tests which need to be reached for a person to be able to make those decisions.
If you suspect a vulnerable person’s capacity to make a certain legal decision (such as getting married, entering into a legal transaction, making a Will or appointing an Enduring Power of Attorney) is impaired, we can assist in applying the appropriate tests to assess their decision-making capacity and ascertain whether they are able to do so.
In our previous article, we highlighted the issues that can arise where a family trust deed has been lost and the importance of retaining a complete copy of the trust deed.
The Court’s view of the process that needs to be followed when a trust deed has been lost has been further considered in two recent New South Wales cases – Application of DEK Technologies Pty Ltd as trustee for DEK Technologies Unit Trust & Ors [2023] NSWSC 544 (“DEK Technologies case”) and BAGI Pty Ltd trading as atf Nick Ristevski Family Trust v Marka Ristevski [2023] NSWSC 567 (“BAGI case”).
These cases offer greater hope to trustees of the Court taking a more pragmatic approach where a deed has been lost.
The case was brought before the New South Wales Supreme Court by the trustees1 of four trusts who sought judicial advice that they were justified in administering the trusts on particular terms, in circumstances where the trust deeds could not be found.
Although the trust deeds had been lost, at the time the trusts were established the accountant (Mr Scopelliti) prepared a detailed letter of advice outlining the establishment of the unit trust with the family trusts as unitholders and setting out various other details of the trusts, such as the discretionary beneficiaries. A corporate diagram was also prepared.
The plaintiffs could not recall receiving a copy of the unit trust deed or signing it and could not recall signing the establishment documents for the respective family trusts.
Mr Scopelliti gave evidence that in establishing trusts for his clients, he always had the trust deeds prepared by ASIS Services Pty Ltd, and that he made no changes to the deeds provided by the company. Further evidence was given by a former employee of ASIS Services Pty Ltd that they had a number of template trust deeds that included all relevant terms and that their order forms contained specific details concerning the trust name, establishment date, settlement sum, applicable law and details of the settlor, trustee and beneficiaries, which was stored on their database.
In making its decision, the Court referred to the case of Vanta Pty Ltd v Mantovani [2023] VSCA 532 and adopted the view that the relevant question to the Court is whether it is satisfied, on the balance of probabilities, that the trust deeds were executed and contained the terms proposed, which may be established by secondary evidence.
In a pleasing result for the plaintiffs, the Court held that the trustees were justified in managing and administering the trusts according to the terms outlined in the letter of Mr Scopelliti, the template deeds and information on the order forms.
In this case, brought before the New South Wales Supreme Court by the trustee of a family trust, an order was sought that the trustee was justified in treating a replacement trust deed as the operative deed for the trust, and to remedy an error in the rectified deed.
The original trust deed for the trust was executed on 1 July 1989 (“the 1989 Deed”) of which the only two parties were the settlor and the trustee. The trustee believed that the original deed was held at a bank branch when it was provided to them as part of loan documentation requirements. However, in 2010 the trustee sought the original from the bank but they could not locate the original or a copy. The trustee made enquiries between 2012 to 2015 as to the whereabouts of the original 1989 Deed, but it could not be located.
In 2015, the trustee sought advice to have the 1989 Deed replaced with a new trust deed, without any knowledge of the terms of the original trust deed. The replacement deed was signed on 12 February 2015 (“the 2015 Deed”) which was described as a “confirmation deed”.
In 2020, an incomplete copy of the 1989 Deed was found at the family home of the trustee. The incomplete copy showed the beneficiaries of the trust created in the 1989 Deed, which were different to the 2015 Deed. The trustee therefore wished to rectify the 2015 Deed to include the beneficiaries included under the 1989 Deed.
The Court held that the 2015 Deed could be rectified, provided it could be established that the parties to the deed had a common intention which continued up to the time of execution. The Court held that there is evidence that the common intention of the 2015 Deed was to reproduce the 1989 Deed and accordingly, the beneficiaries of the 2015 Deed can be amended to reflect the 1989 Deed.
In relation to whether the trustee could rely on the 2015 Deed as the operative deed, the Court held that the original 1989 Deed contained a broad power of alteration, modification or revocation of the trust and accordingly that power was sufficient to authorise the amendments which occurred to the trust via the 2015 deed. Therefore, the Court confirmed that the trustee was justified in acting in accordance with the 2015 Deed.
Although on its face both matters are a win for the trustees, it is worthwhile noting that potential unintended consequences were not specifically addressed by the Court.
In particular, the BAGI case raises the question of a potential duty complication where a confirmation deed is adopted – being the 2015 Deed in the matter. Depending on where the trust assets are held, and in this matter they fell within the New South Wales jurisdiction, the relevant state revenue office may view the confirmation deed as a resettlement, trust acquisition or a declaration of trust (applicable in New South Wales) which would result in duty being applicable on the market value of the dutiable property of the trust.
It is therefore important that, in particular where trusts hold dutiable property, that the trustee, their advisors and accountants know the whereabouts of the original deed, have sighted it and retain accessible copies. Should there be a need for the preparation of a deed of rectification or confirmation for any trust, then it is integral that the terms of the trust are as consistent as possible with the original trust deed.
Please contact us for more information and tailored assistance.
1 DEK Technologies as trustee for the DEK Technologies Unit Trust, Drini Mulla as trustee for the Mulla Trust, Kerim Tanovic as trustee for the Tanovic Trust, and Wisdomw Consultancy (Vic) Pty Ltd as trustee for the Yim Tang Family Trust.
2 See https://www.moores.com.au/news/lost-trust-deed-implications-for-family-trusts/.
When a member of a superannuation fund dies, their superannuation benefits (known as ‘death benefits’) must be paid out of the fund – this is what is referred to in the superannuation industry as a ‘compulsory cashing event’.
If the member’s superannuation is not paid to a ‘tax dependant’ (being someone eligible to receive the member’s superannuation entitlements tax-free), then there will be some tax to pay. The tax can be up to 15% of the member balance, and up to 30% of any life insurance that the member owns within the fund.
Because of this tax, where a person does not have any tax dependants, a common strategy is to consider withdrawing the superannuation into their personal name prior to their death, provided they meet certain conditions to access their super during their lifetime. This is often referred to as a ‘death bed withdrawal’, as many superannuation members do not want to withdraw their entitlements too early, given the concessional tax treatment usually afforded by holding wealth in the superannuation environment.
But there is some grey area here – what happens when someone has requested a withdrawal of their entitlements, but they pass away before the payment hits their personal bank account?
In February 2023, the Australian Taxation Office (ATO) published a list of factors that it will consider to determine with a payment in this scenario is a ‘death benefit’, meaning it will be subject to tax (if applicable) or a ‘member benefit’, meaning that the payment can come out to the member as non-assessable, non-exempt income i.e. essentially it is tax free (noting that other taxes such as capital gains tax and stamp duty may still apply).
Importantly, one of the key factors that the ATO considers is whether the trustee of the fund had knowledge of the member’s death prior to making payment of the superannuation out of the fund, which does not appear to have been considered as a relevant factor in the ATO’s previously published private binding rulings.
In the case of a self managed superannuation fund (SMSF), unless one of very few exemptions apply, the member must be a trustee, or director of trustee company, of the fund, and on their death, their legal personal representative (being the executor of their Will or the administrator of their estate) will take their place in the controlling role. As such, there are very few circumstances where the trustee of the fund will not be aware of the member’s death, prior to making the payment pursuant to a request made by a member during their lifetime – perhaps only circumstances where an independent legal personal representative, such as a professional advisor or professional trustee company is appointed.
Following the ATO’s publication of the new factors for consideration, a private binding ruling has been published which sought to clarify whether payment from an SMSF initiated by a request during the member’s lifetime, but paid after their death, was a ‘member benefit’ or ‘death benefit’. The ruling concluded that the payment was a death benefit.
The ATO’s decision in this ruling largely turned on the SMSF trustee’s knowledge of the member’s death prior to making payment and stated that “it cannot be said that the trustee made the payments with the exemption that the member would be alive to receive it”.
Given this updated stance taken by the ATO in considering payments in these circumstances, it is difficult to see many opportunities that SMSF members will have to withdraw their super as non-assessable, non-exempt income, when doing so in the days immediately prior to their death, particularly in circumstances where assets will need to be sold or liquidated. Instead, longer-term planning may be required if a member has a serious health condition and consideration is given to the income tax benefits of retaining superannuation within the fund, versus the death benefits tax that would be payable if the funds are not withdrawn.
It is crucial that all advisors involved in assisting SMSF members are clear on the new ATO factors and how they are being adopted by the ATO through publications of its private binding rulings. Beyond this, all advisors in this area need to be fully across the governing rules of the relevant SMSF to efficiently take client instructions and implement withdrawals, particularly when the request is time critical.
For expert advice or guidance regarding Estate Planning and self managed superannuation funds, please do not hesitate to contact us.