After separation, most people will need to unravel their property and finances and may need to decide how best to look after any children.

Property and parenting issues can be difficult and with our experience as a family lawyer, we can successfully advise and address these issues for you.

We will assess what steps need to be taken, advise you as to what your likely entitlement is, and help you reach the best possible outcome.

We will always provide you with realistic advice; I treat my clients with sensitivity however I will not hesitate to provide tough advice when required.

We will help you finalise your case as quickly as possible while making sure that you are able to secure your financial future as much as possible.

Most of our matters are resolved by way of negotiation which not only keeps your costs down but it means you remain in control of the outcome.

If litigation is necessary, we do not shy away from a fight.

We encourage clients to be realistic and educate them about the law, we take our duties to our clients and the Court seriously.

Our initial consultation is at no charge.

We can provide assistance for a range of matters relating to family law and de facto relationships, including:

Property settlements
Children's matters and parenting plans
Consent Orders or Binding Financial Agreements
Divorce - joint application - fixed fee *$660.00
Prenuptial agreements
Spousal maintenance
Legal representation at Family Court

*If mutally agreed, plus filing fees (currently $990.00) and service fees if necessary for a Sole Application

Selling or purchasing a house can be both exciting and scary. It’s possibly the biggest financial decision you will ever make.

The one common element for all parties to real estate transactions is that they want the deal to go smoothly; with no hiccups, no hidden costs and no delays.

For this you need the right professional to look after your conveyancing.

We talk to you in plain language, keep you fully informed along the way.

We can help with all stages of property transactions, buying or selling a home, vacant block, strata title, commercial real estate or rural property,

As we are a solicitor, you also get the added benefit of our expertise during your conveyance for other legal areas as well, for example:

If the your sale is part of a property settlement, we can help you with both the property settlement and the title transfer.
If you have been left a house in a will, we can handle your conveyancing work and give you legal advice about deceased estates and probate issues.
For a complicated transfer or matter requiring a Solicitor rather than a Conveyancer, we will already have knowledge of your matter and can immediately deal with the situation rather than involving another professional.

The whole system has now moved to an electronic model and conveyances are conducted online.

I have the knowledge and access to the technology to finalise your conveyance online and ensure everything goes smoothly on settlement day.

We use REINSW FastTrack Contracts which gives us the ability to share your contract with your real estate agent. This is a quick and simple way of keeping all parties to be connected more easily throughout the property transaction process. Please advise your agent that they can send a request to Hawkesbury Legal for us to prepare your contract.

I offer my services at a fixed fee plus disbursements for:

a Sale : $990 (incl gst)

a Purchase: $1,120 (incl gst)

Life has got more complicated; the amount of change our elders have been through in their lifetime is mind boggling.

The family home is now worth a considerable sum of money and the cost of aged care is increasingly expensive. Elder Law has grown into a significant area of law with the rise in longevity of Australia's populations, asset retention and possible impaired capacity. These factors can make our elders vulnerable.

There are so many financial decisions to be made as we age to ensure we can afford the care we may require. It is important to seek help from a financial planner and solicitor to ensure you are aware of all your options and to avoid any pitfalls.

Michelle gives talks at various clubs in the area such as Probus about Elder Abuse; and the benefits and pitfalls of Powers of Attorney and Enduring Guardians and the importance of a Will which is tailored to your situation.

She is completing her Masters Degree majoring in Wills & Estates and Elder Law with the College of Law to increase herknowledge in these areas.

Wills

Many people think they can save time and money, by using a Will Kit and in some instances they may be right; however in most cases they are very wrong.

Family Provision claims have become more commmon as the price of property has soared.

Will kits or online Wills cannot give you the vital advice required when considering your Will such as;

advice particular to your assets and unique family circumstances;
the risks your estate may face should a Family Provision claim be made, and advice as to how to manage your estate in order to limit the chances of such a claim;
advice about matters relevant to your succession planning generally, such as the pros and cons of transferring ownership of certain assets before you die.

We can limit the prospect of your will being challenged for being ineffective or incomplete and make sure your loved ones and beneficiaries are provided for as you intend.

We also have advanced experience in drafting complicated Wills and Wills containing Testamentary Discretionary Trusts which provide a greater level of control over the distribution of assets to beneficiaries. In many cases they offer valuable advantages over standard Wills for example:

Asset protection:
The ability of beneficiaries to control their inheritance in a way that the assets do not form part of their estate.

This is important for circumstances such as;

Some protection from Family Court Orders;
Providing for special needs of beneficiaries with disabilities or any other issues that may affect their ability to manage their financial affairs;
Providing asset protection if a beneficiary is a company director or a business owner;
Minimising tax in certain circumstances.
Maintaining assets within your lineal descendants.

We can offer very reasonable fixed fees for most simple Wills:

For a simple single Will $245 plus gst

For couples $400 plusgst

This means you know from the start how much it will cost.

Dependent on your family situation and assets, some Wills need to be more complicated.

For these we will be able to give you an estimate once we receive your details.

Estates

The death of a loved one can have a huge impact on the family unit. It’s often a very hard and stressful time for all involved.

Administering an estate is not always easy and, as an executor you can be held liable if you get it wrong.

If someone has named you as their executor, it is a wise choice to consult a solicitor and make sure you get it right;

We can provide the advice you need and guide you through this difficult process.

We can also help you obtain probate or letters of administration; this can be a challenging and time consuming process.

Once probate or letters of administration have been approved we can help with the administration of the estates as little or as much as you require.

We aim to keep things as simple and as efficient as possible and provide you with a cost-effective and professional service.

Our legal fees are based on the standard Supreme Court scale of fees.

Powers of Attorney

A power of attorney is a powerful legal document made by a person that allows someone else to do anything that you can do with your money, bank accounts, shares, real estate and other assets.

A power of attorney can help if you cannot look after your finances for yourself.

Your attorney would be legally authorised to do things for you when the need arises.

If you require an enduring power of attorney you must appoint an attorney before you need it. Once you lose mental capacity, you can no longer make a power of attorney as you must be able to fully understand what you are signing for the power of attorney to be effective.

An attorney can be given the power to sell, lease or mortgage your house (if the document is registered with Land Registry Services), sell your personal belongings, take money out of your bank accounts, gain access to your documents (other than your will) and sell your shares.

You may set whatever limitations or conditions on your attorney that you choose.

Careful consideration is needed when appointing someone to be your Attorney; unfortunately it is becoming more common for some people to abuse this position of trust.

We can make sure you have taken everything into account and protect your interests before handing over this power to another person or people.

Enduring Guardian

An enduring guardian is a substitute decision-maker with legal authority to make health and lifestyle decisions on your behalf if needed.

Your enduring guardian is legally appointed by you and should consider your views and those of professionals and other people important in your life. They must then take into account the circumstances existing at the time and make decisions on your behalf should the need arise.

The most common decision-making areas you can give to your enduring guardian include:

Accommodation – to decide where you live;
Health Care – to decide what health care you receive;
Services – to decide what personal services you should have to support and assist you;
Consent to medical and dental treatment – to give or withhold consent to medical and dental treatment on your behalf.

We can assist you with this document and ensure they are written specific to your needs and that you fully understand the position of your guardian and make an educated decision about who that should be.

We offer a fixed fees for both Powers of Attorney and Enduring Guardians;

$165 plus gst each pp or $300 plus gst for both documents pp.

FAMILY LAW

Your family law property settlement is a separate matter to your divorce. It is advisable to finalise your property settlement without delay once you have decided to permanantly split from your partner. Your divorce can be completed at a later date.

Time limit:

Firstly it is important to be aware that there are time limits in bringing proceedings for property settlement or maintenance in Court.

Should your time limit expire without having finalised your property settlement (or issued proceedings to do so), you will then have to obtain special leave from the Court. The Court does not automatically give leave to the parties unless for example, it can be demonstrated that considerable hardship or financial disadvantage will be experienced by either party, this of course would incur additional costs.

Asset Pool Increase:

Before you delay your property settlement it is very important to understand that the law is very clear that the property pool is assessed at the time of Consent Orders or trial (not the date you separate). This means someone who accumulates significant assets post separation e.g. inheritance, lottery win or just good money management and saving. Those assets are available for division with the other party.

Dissipated Assets:

Delaying your property settlement can leave you exposed to the risk of dissipated assets. This happens when one party wastes or squanders assets post-separation such as with holidays, gambling or bad money management. In order to prevent inheriting the impact of your exe's poor choices you will need to prove the assets have been squandered on non-essential living expenses. Proving this is the case often leads to long (and expensive) legal battles.

Death of your former partner:

If the settlement is left open for a long period, there is always the chance one of the parties could die before property settlement proceedings are begun. This would mean it is no longer possible to file Consent orders in Court. Their assets will be distributed in accordance with the Will. If there is no valid Will or the Will is challenged by an eligible person, the matter can be further complicated.
Also, upon their death, any assets owned as joint tenants will be automatically transferred to the other joint tenant. This is regardless of what is stated in the Will. This is because assets owned as joint tenants do not form part of the estate.

Housing market change:

The housing market has recently boomed causing issues with family law settlements. Some clients are no longer able to stay in the family home as planned because they can no longer afford to do so. As other assets have not increased by the same proportion the value of the house becomes a much larger portion of the assets.

If you are thinking of delaying your property settlement please consider these points and make your decision carefully.

Consent orders

Most people settle their property matter by coming to an agreement and filing Consent Orders.

The Application for Consent Orders is made by filing in the registry of the Family Court. The orders are made in chambers with no requirement for the parties to attend Court.
You will need to:
1. Complete an Application for Consent Orders; and
2. Prepare the actual consent orders.
Your current financial position must be recorded accurately in the application which must show that the agreement reached with your partner is just and equitable.
The registrar must be satisfied of this, or a requisition will be sent seeking further clarification. This may result in the necessaity to file affidavits which will increase fees.

Divorce:

This is a relatively easy process in Australia if you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. Your Application for Divorce can be joint or sole. If you make a sole application and there is a child of the marriage under 18, you must attend the hearing. If there is no child of the marriage under 18 you are not required to attend the hearing, whether it is a sole or joint application. You will also need to make sure proper arrangements have been made for any children under 18 before a Divorce can be granted.

Photo by Kelly Sikkema on Unsplash

CONVEYANCING

What is conveyancing?

It is the legal action of transferring ownership of a legal title of land to the new owner, whether this is from a person or entity. In all likelihood, you are dealing with one of your largest assets and it is therefore important you choose a representative with experience in this area.

The conveyancing transaction generally consists of three stages:

pre-contract
pre-completion
post-completion

Your conveyancer ensures you are prepared for critical dates during the process and are in regular contact with the other party’s lawyers.

The benefit of choosing a solicitor over a conveyancer is we can provide advice on matters of property law or assist you with the terms of your sales contract and tax. A solicitor can also assist if a legal dispute or issue arises during the settlement process.

It is much safer to enlist the expertise of a conveyancer or solicitor than performing the conveyance by yourself. If your conveyancer or solicitor makes a mistake, you will be covered by our professional indemnity insurance.

Without this protection, if something goes wrong, as a purchaser you risk losing the property and forfeiting your 10 per cent deposit.

For the Purchaser:

Your conveyancer:

Guides you through the process and checks the contract of sale and researches the property and its certificate of title.
Checks for easements or encroachments and other items that will need to be addressed.
Advises of any stamp duty due.
Represents your interest with the vendor or their agent.
Advises of critical dates ie: cooling off
Contacts your bank or financial institution to arrange settlement.
Calculates the rates and taxes and adjusts them for settlement and provides a settlement adjustment sheet.
Organises and attends to electronic settlement.
Advises buyers when the property is settled.

For the seller:

Your conveyancer:

Completes the contract of sale and annexes the relevant certificates so the contract is valid;
Liaises with the agent.
Organises exchange of contracts with the purchaser's solicitor.
Represents you in dealings with the purchaser's solicitor – ie: asking title questions, requesting extension of dates, etc
Liaising with the bank if there is a mortgage
Checking the Settlement Adjustment Sheet for settlement
Organises and attends to electronic settlement
Advises vendors when the property is settled.

WILLS

Why is a Will necessary?

If you think it about from your individual point of view it seems it may not! The hard truth is that, as you won’t be here, you may think it won’t affect you who gets what. Nowadays as we have more “stuff” and houses are worth a fortune, unfortunately it’s not as simple as it used to be. What type of legacy do you want to leave behind? Do you want to be the one whose children say “they died without a Will and left an absolute nightmare behind” We do have “Intestacy laws” and some people reason that they only have their children or spouse to worry about and they’d be first on the list anyway. The problem is, there are so many hoops to jump through to apply to administer the estate and worse still there is the chance of friction developing between your children when they are already stressed after your death. Most people believe there children get along really well and they will be fine. I want you to be honest with yourself, we all know our children; they’re not all the same. Some are strong, some are weak, some are selfish, others are not. Some have spouses you trust and others you don’t. By the time you move on will you really know what is happening behind closed doors with your adult children’s financial situation? Solicitors see it time and time again, once you’re gone, old arguments surface and in some cases it dissolves into an every-man-for-himself situation. The only ones who benefit from this are the solicitors. It’s horrible, it’s expensive and you surely don’t want that for your family.

Will kit or solicitor drafted Will

Sometimes a Will kit may be fine but more often they’re not. We have seen some when people come to update their Wills and so relieved they decided to do so and we have been able to avoid a potentially disastrous outcome for their family. Most clients say they need a simple Will, but once we talk we find issues which need to be addressed in the Will or decisions which are not advisable. Your decision needs to be made after careful advice from an experienced solicitor who can ask the right questions.

Family provision claim

In an attempt to stop people unfairly leaving beneficiaries off their Will with the possibility of those people ending up on public benefits there exists legislation where your wishes can be changed. You may have had a former spouse with children, grandchildren or any other person who was, at some time, financially dependent upon you. This could even have been someone in a close personal relationship who provided domestic support, personal or emotional care. In these cases your estate would be open to a family provision claim and the Court’s will decide who gets what.

This is assessed on the assets of the claimant/s and your beneficiaries, their earning capacity and their needs in the future. Your wishes are only given minor consideration at this stage. While we cannot guarantee your wishes are 100% protected in your Will we can draft it carefully and provide the reasons for your decision so the Court can possibly uphold your decision or make a substantially reduced order to the person making a claim.

Please consider having a Will drafted by a Solicitor - and keep it current. It is not an expensive exercise relatively speaking to your assets and it can save an awful lot of stress for everyone you love.

Photo by Melinda Gimpel on UnSplash

POWERS OF ATTORNEY

A Power of Attorney can be a great tool if you cannot look after your finances for yourself. Since houses have become so valuable and any care for the elderly has become so expensive; it is almost essential to consider having a POA. Your attorney has a legal duty to avoid any conflict of interest such as taking a benefit for themselves or a third party. What you have to remember is that basically, your ‘attorney’ can do anything that you can do with your money, your bank accounts, your shares, real estate and other assets. A General Power of Attorney – gives someone else control of your financial life for a specific period of time, such as during a trip or long stay in hospital. However a general power of attorney is no longer valid once you are incapacitated. If you wish your Power of Attorney to continue after you lose mental capacity, you will need an Enduring Power of Attorney (EPOA). This gives someone else control of your financial life indefinitely if you're no longer capable of making these decisions. When you grant someone an enduring power of attorney, you are effectively handing over control of your assets in the hope they will be well-managed should you become incapable of handling them. Once this document is signed, there is no independent oversight of your attorney or attorneys who take charge of your affairs. Your attorney does sign a statement on the document however saying they will act in your best interests, never mix your money with theirs, keep reasonable accounts and records of your finances, not gain a benefit from their position and act honestly. If this is not done they can be charged with fraud and the courts are now responding with gaol sentences in an effort to stop the increasing instance of abuse with this document.

Who should my attorney be?

The trick is to proceed with extreme caution, we want you to remove all traces of sentimentality from your mind when asking, "Who should I trust with such a responsibility? " Basically you should only give this power to someone you trust with your life. The ultimate qualification for any enduring power of attorney candidate is an absolute absence of conflict of interest, someone who doesn't stand to gain from taking over your affairs. On the face of it, that would usually immediately rule out your family members especially if they live with you.

Some people choose to appoint Trustee & Guardian NSW and if you have no one to turn to, this can be a sound idea. However if you do have someone to do this for you, it is a much better option to give this power to your family as TAG fees are very expensive as the are based on your assets. TAG can also be extremely cumbersome as it involves a lot of paperwork and reports and we have sometimes found there are lengthy delays having things paid.

Even with conflict of interest, a trusted family member or members are often the best-placed for the job.

We suggest, if possible that you inlcude more than one person as your attorney; even if your appointed attorney is headed toward sainthood you must understand the financial power you are giving away and the severe consequences if it is misused.

We have had many clients where only one sibling was given this power and the other siblings look on warily – it can eventually rip the family apart.

Misuse of EPOA

The misuse of an Enduring Power of Attorney is becoming the most common form of financial abuse. Over 70% of this misuse is estimated to be committed by family members (Although most of the time it is family members who are appointed). This why when obtaining an EPOA it is better if you discuss your family dynamics and personalities of your prospective attorneys with an experienced solicitor who will take your situation into account when drafting the document.

ENDURING GUARDIAN

You need an Enduring Guardian when you can’t make medical and personal decisions for yourself because of temporary or permanent loss of capacity, you must appoint someone before you lose capacity.

Why appoint an Enduring Guardian?

This document is so a substitute decision-maker can make health and lifestyle decisions on your behalf. Their powers only come into effect if you lack capacity to make decisions. If you only have a partner or one child

Who should you choose as your Enduring Guardian?

If you have more than one family member who would like to help you at this time it is important to appoint those you trust who will honour your views and lifestyle choices when making decisions for you and not their own. When choosing who will be your guardian, discuss with them what you want to happen if you lose capacity; if they cannot agree with this, they should not be your guardian.

What sort of decisions can your Enduring Guardian make?

This document is ONLY for decisions about health and lifestyle…. Not MONEY. These include decisions such as:

Deciding where you live;
Health Care Such as dental, podiatry, which doctor you see and
End of life treatment such as palliative care.
Personal Services such as personal care, house cleaning, counselling social and recreational services.

Photo by Andrea Piacquadio on Pexels

ELDER ABUSE

The proportion of elderly Australians in the total population has doubled in the last 50 years.

As our elders become more physically frail, they’re less able to stand up to bullying and or fight back if attacked. They may not see or hear as well or think as clearly as they used to, leaving openings for unscrupulous people to take advantage of them. Mental or physical ailments may also make them more trying companions for the people who live with them.

WHAT IS ELDER ABUSE?

Elder abuse is the mistreatment of an older person that is committed by someone who they have a relationship of trust such as:

son or daughter
grandchild
partner
other family members
friend or
neighbour

Overwhelmingly most abuse is perpetrated by relatives and even more regrettably, by their own children.

Elder abuse violates an older person’s basic right to feel safe. It is controlling behaviour or actions which frighten or intimidate. It can be subtle or it can be extreme.

The latest figures show that financial abuse and psychological and emotional abuse together are the most common forms of abuse reported.

Abuse can be unintentional or deliberate. Sometimes family, friends and carers may not know that their actions amount to elder abuse. It may range from the unintended effects of poor care through to serious physical injury inflicted deliberately.

There are several forms of Elder abuse including:

FINANCIAL ABUSE

Using someone’s money, property or other assets illegally or improperly without their informed consent or with consent; by fraud, manipulation or duress.

Examples include:

A family member taking a loan with a promise of repayment but not paying the money back
Stealing money or using an older person’s eftpos or credit card without consent
Forcefully or manipulating changes to a will or other legal document
Selling property or assets without authority or consent
Transferring property without consent or by duress- this is usually done by using a Power of Attorney which the elderly person has been manipulated into signing (but that’s another story)

Some cases:

A son moved in to help his father renovate. The son then sold the house and delivered his emaciated father to his sister’s house in just the clothes he was wearing, the son ledtleaving his father with nomoney.

A bank teller who was concerned when a regular customer came in with her son, asking to withdraw $50,000. When the manager asked if she really wanted to withdraw the money, she said her son had told her she wouldn’t see the grandchildren again if she didn’t.

EMOTIONAL (OR PSYCHOLOGICAL) ABUSE

Using threats, humiliation or harassment causing emotional distress and feelings of shame, stress or powerlessness.

Examples include:

Threats- such as the threat to withdraw any assistance if they don’t comply
Verbal assaults
Humiliation
Harassment
Intimidation
Habitual blaming or scapegoating
Ignoring the elderly person

SOCIAL ABUSE

Forcing someone to become isolated by restricting access with family, friends or services. The victim experiences a sense of isolation and the perpetrator can use it to prevent others from finding out about the abuse.

Examples include:

Confining the person to their home or room
Preventing them from answering the phone or door
Depriving them of access to transport
Intentionally embarrassing them in front of others

MISTREATMENT

Involves the denial of a person’s right to live safely and independently.

Examples include:

Denying a person privacy or intimacy
Withholding information
Denying a person access to other relatives and friends by stopping visitors or interfering in phone calls
Restricting a person’s freedom by not letting them leave the house
Intercepting a person’s mail

NEGLECT

Deprivation of the basic necessities of life

Active neglect which is the deliberate withholding of basic care or necessities.

Examples include:

Leaving an older person in an unsafe place or state
Stopping access to medical treatment
Abandonment
Not providing adequate clothing or sufficient food and liquids
Untreated illnesses
Over or under medicating

Passive Neglect which is the failure to provide proper care, due to carer stress, lack of knowledge or ability. This may be unintentional, and simply require additional support to assist both carer and older person.

Criminal abuse includes:

PHYSICAL ABUSE

Inflicting pain or injury by hitting, slapping, pushing or using restraints.

SEXUAL ABUSE

Any sexual activity for which the person has not consented.

WHY DOES ELDER ABUSE OCCUR?

There are many schools of thought on why elder abuse occurs:

Social attitudes such as the negative views of ageing which can cause ageist attitudes and stereotypes.
Sometimes the abuse is as a result of an inability to cope with the person’s care needs, frustration, ignorance or negligence;
Others may have problems with alcohol, drugs or gambling;
Sometimes the abuse began in earlier years and continues through into old age;

It seems the leading cause for elder abuse today is because of the disparities in wealth and access to housing with increasing property values, this is causing uncertainties about the future in younger generations. They then develop an interest in protecting any potential inheritance rather than the elderly person.

The elderly are also coming to the realisation that their resources need to remain available to fund their own care and may be exhausted by the end of their own lives.

Due to this conflict a concept of "inheritance impatience" has been developed, which is:

"A situation where family members deliberately or recklessly prematurely acquire their ageing relatives' assets that they believe will, or should, be theirs one day" [1]

The risk and incidence of elder abuse will become more critical as the baby boomer generation ages and home ownership for younger generations decreases, placing more pressure on transfer of wealth within families.

SIGNS OF FINANCIAL/EMOTIONAL ABUSE

Significant withdrawals from the elderly person’s bank account;
Sudden changes in the elderly person’s financial condition;
Items or cash missing from their household;
Suspicious changes in wills, power of attorney, titles, and policies;
Addition of names to the senior’s signature card;
Unpaid bills or lack of medical care, although the elder has enough money to pay for them;
Financial activity they couldn’t have done, such as an ATM withdrawal when the account holder is bedridden;
Unnecessary services, goods, or subscriptions
Witnessing or being told of threatening, belittling, or controlling behaviour by a friend/family member
A sudden lack of confidence

The abuse of our elders is a serious human rights issue. It is a dark and often hidden blight on our society. The fact that most elder abuse is perpetrated by the victim’s own children can present an added dimension of trauma for the victim and make the option of “moving on” from harmful relationships unthinkable.

This abuse also has the potential to cause serious divisions within a family. Older victims may have reservations about seeking help or taking action, fearing they might upset delicate family dynamics, with the unintended consequence of severing connections with their children and grandchildren.

There are already signs of increasing demand for elder abuse services. Figures from Advocare’s National Elder Abuse Annual Report show the number of calls to elder abuse hotlines across Australia has nearly doubled from 2017 to 2020.

WHERE TO GET HELP

NSW Ageing and Disability Abuse Helpline 1800 628 221 for those who experience, witness or suspect abuse

Your Local Police Station

Aged Care Information Line 1800 500 853

Commonwealth Carelink Centre 1800 052 222; to find your local Aged Care Assessment Team

Please also find information on

https://www.ageingdisabilitycommission.nsw.gov.au

https://ownnsw.org.au/our-work/elder-abuse/

[1] Miskovski, 2014, p. 18

Hawkesbury Legal

Hills and Hawkesbury area solicitor

Local, Personalised Service

Areas of Practice

FAMILY LAW

CONVEYANCING

ELDER LAW

WILLS & ESTATES

Wills

Estates

LIVING DOCUMENTS

Powers of Attorney

Enduring Guardian

JP SERVICES