Q: What is an Enduring Power of Attorney (EPA)? Edit

A: An EPA is an important document where you get to appoint someone you trust to make decisions for you if you are unable to make your own decisions. That person is called your attorney.

You can appoint more than one attorney, if you wish.

You can give your attorney/s powers to make personal and health decisions for you, such as where you live, who cares for you and medical decisions. Your attorney/s can only make these kind of decisions if you are unable to make those decisions for yourself.

You can also give you attorney/s powers to make financial decisions for you. This can include day to day matters such as accessing your bank accounts to pay for groceries and bills, but also bigger decisions such as selling your property. You can decide whether you wish your attorney to have these powers immediately or if they should start at another time, such as if you lose capacity.

You can put limits on your attorney’s powers if you wish, and your attorney always has to act in your best interests. It is therefore a very important document and you should seek legal advice about the best way to draft your EPA to meet your particular needs.

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Q: Is your marriage breaking down? Edit

A: There is only one ground for a Divorce in Australian Law. That is that your relationship has broken down irretrievably. You must have been separated for at least 12 months and have no reasonable likelihood of reconciling.

In order to be separated, one or both of the spouses must:

  1. Form an intention to end the relationship;
  2. Communicate that intention to the other party; and
  3. Act on that intention.

For more information on family law and de facto relationships, click here.

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Q: Should I make a will? Edit

A: Yes.

A will is an important document in which you state what you want to happen to your estate when you die. Your estate can include money, property, personal possessions, investments, shares, employment benefits and your businesses.

You get to state who should be the beneficiary of certain items of your estate, and/or who is entitled to what share after all debts have been paid. You also choose who you want to be in charge of making sure the wishes in your will are lawfully put in place after your death. That person is known as your executor.

It is very important to make a will, even if you don’t think you own much. Making a will is more than just deciding who gets what if you die. You can also, amongst other things:

  • Appoint a testamentary guardian for your minor children;
  • Set up trusts for beneficiaries who may be minors or have disabilities;
  • Put conditions on how beneficiaries spend their money or in what circumstances they receive their money;
  • Forgive unsecured debts; and
  • Make directions about your superannuation or life insurance policies; and
  • Make directions as to funeral arrangements.

The laws that apply if you don’t have a will may not reflect your wishes or protect your family in the way you want.

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Q: What do you do if you are the executor of a deceased estate? Edit

A: If you are appointed as an executor in a will it is important you seek some initial legal advice. There are many responsibilities and duties of being an executor, even if there is not much money involved.

Responsibilities include making sure:

  • You have correctly understood what the will says;
  • Assets, such as real property, are kept in good condition before distributing to beneficiaries;
  • You pay off any debts that the deceased may have owed, such as a mortgage or bills;
  • You have applied for a Grant of Probate from the Court if it is required;
  • You set up any trusts created in the will, such as looking after a child beneficiary’s money until they turn 18 or 21; and
  • That all beneficiaries receive their share in accordance with the will.

A solicitor can help you understand your responsibilities and help you decide whether it is a role you want to, and are able, to take on. They can also guide you through the entire process step by step if you need assistance.

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Q: What if my partner/parent/child has died and I cannot find a will? What do I do? Edit

A: If there is no will, the deceased is said to be intestate. Again, it is important to seek some legal advice about what to do.

There are laws which set down rules about intestate estates in relation to:

  1. Who is entitled to be the personal representative;
  2. Whether a formal Grant is required from the court;
  3. Whether an informal ‘document’ could be considered to be a will; and
  4. Who will be the beneficiaries of the deceased’s person’s estate.

A personal representative will have very similar responsibilities to executors and should seek legal advice to ensure they meet all their responsibilities.

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Q: Have you been injured on the road? Edit

A: In Queensland we have a compulsory third party insurance (CTP) scheme. CTP insurers, as part of a vehicle’s registration / renewal fee, provide insurance cover to anyone that is injured through the fault of another person in the operation of a registered vehicle. The scheme provides a mechanism for injured persons to lodge a claim with the relevant CTP insurer for payment of their medical expenses, rehabilitation costs, loss of wages and also for pain and suffering. If a person is injured by an unregistered or unidentified vehicle a claim can be made against the Nominal Defendant. The CTP scheme applies to any registered vehicle including cars, motorcycles, trucks and buses.

It is important that you seek legal advice if you intend to pursue a CTP claim to ensure that you are receiving all of your legal entitlements. There are also strict time limits that apply to CTP claims so to ensure that your legal rights are protected, contact us for a free consultation.

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Q: Have you been injured at work? Edit

A: If you have been injured at work you must immediately tell your employer. If your injury requires you to take time off work or if you need medical treatment, contact WorkCover Queensland to lodge a claim. As part of the application procedure you will need to attend upon a doctor to have a WorkCover medical certificate completed. If your WorkCover claim is accepted you will be entitled to receive a proportion of your wages and payment of your medical expenses for the duration of the claim.

Once your injuries are stable and your WorkCover claim has been finalised, we may be able to assist you to bring a common law claim to seek additional compensation, including pain and suffering, ongoing loss of wages and medical expenses. In order to proceed with a common law claim you will need to establish that your injuries occurred as a consequence of your employer’s negligence, ie: that your employer breached the duty of care that they have towards you as their employee. Further, if your injury occurred after 15 October 2013, your injury or injuries need to have resulted in a degree of permanent impairment of more than 5%.

The workers’ compensation scheme can be complicated so if you have been injured at work it is best to see a solicitor as soon as possible so that you know your rights and are properly represented from the outset. In addition, there are strict time limits that apply to both statutory and common law claims. At Chris Trevor and Associates we have experts to help you through what can otherwise be a confusing and stressful process so contact us for a free consultation.

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Q: Am I entitled to lodge a total and permanent disablement (TPD) claim? Edit

A: If you are no longer able to work due to sickness, ill health or injury, you may be entitled to lodge a total and permanent disablement claim through your superannuation fund. A total and permanent disablement claim provides for payment of a lump sum amount if your superannuation fund is satisfied that you are unlikely to be able to return to the workforce. The lump sum amount depends on your level of insurance cover and decreases as you get older. There are restrictions on when a claim can be lodged, however, and generally you need to have been unable to work for at least 6 months prior to the lodgement of a claim.

It is recommended that you obtain legal advice if you want to lodge a total and permanent disablement claim to ensure that all of the relevant information and documentation is provided to the superannuation fund and to give you the best chance of a claim being approved. At Chris Trevor and Associates we are experienced in total and permanent disablement claims and know what superannuation funds require in order to approve a claim. If you think you have a claim, contact us for a free consultation where we can discuss your options further. We can also check your superannuation for you if you are uncertain as to whether you have total and permanent disablement insurance.

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Q: Have you been dismissed by your employer? Edit

A: Have you recently had your employment terminated by your employer? Do you think the termination was harsh, unjust or unreasonable? If so, you may be able to lodge an unfair dismissal claim with the Fair Work Commission ("the Commission”). A claim must be lodged within 21 days from the date of the dismissal so you must act promptly if you think you have been unfairly dismissed.

Once an unfair dismissal claim has been lodged with the Fair Work Commission a conciliation conference will be organised which gives all parties the opportunity to talk to one another and try resolve the dispute. A large number of claims settle at this stage. If the matter does not resolve at a conciliation conference a hearing may be needed in order to determine whether the dismissal was harsh, unjust or unreasonable. In determining what is harsh, unjust or unreasonable the Commission looks at the following:

  • Whether there was a valid reason for the dismissal relating to your capacity or conduct;
  • Whether you were notified of that reason;
  • Whether you were given the opportunity to respond to the allegations made relating to your capacity or conduct;
  • Any unreasonable refusal by your employer to allow you to have a support person to assist in discussions relating to the dismissal;
  • If the dismissal related to unsatisfactory performance, whether you had been warned about the unsatisfactory performance prior to the dismissal;
  • The degree to which the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
  • The degree to which the absence of a dedicated human resource management specialist impacted upon the procedures followed in effecting the dismissal;
  • Any other matters.

There are restrictions on who is able to lodge an unfair dismissal claim. You need to have been employed with the employer for at least 6 months. If the employer is a small business employer you need to have been employed for at least 12 months.

If your employer is found to have unfairly dismissed you then the Commission can order an award of compensation or reinstatement to your position.

If you think you may have been unfairly dismissed it is important that you seek legal advice as soon as possible. At Chris Trevor and Associates we can tell you whether your claim has good prospects of success as we have been involved in many unfair dismissal cases. Call us for an appointment.

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Q: Are you bullied at work? Edit

A: Bullying in the workplace is unacceptable and everyone has the right not to be bullied or harassed at work. So what is bullying? A worker is bullied at work if:

  • A person or group of people repeatedly act unreasonably towards them or a group of workers; and
  • The behaviour creates a risk to health and safety.

Examples of bullying include:

  • Behaving aggressively;
  • Teasing or practical jokes;
  • Pressuring someone to behave inappropriately;
  • Excluding someone from work-related events; or
  • Unreasonable work demands.

Bullying does not occur where a manager takes action against a worker for poor performance or initiates disciplinary action. Reasonable management action that’s carried out in a reasonable way is not bullying.

If you are being bullied at work, talk to your supervisor or manager at work initially. If the bullying continues you can ask the Fair Work Commission for an order to stop the bullying.

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