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Don't neglect your own risk management
- Why you may need a POA
Termination of contracts based on undisclosed
easements
Our name-changing laws are modernised
Get me to the church
on time, even sooner!
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What if you were faced with the reality of being unable
to manage your personal or financial affairs because of sudden illness,
serious accident or declining mental capacity? Or just being stranded
overseas for a while by an airline disruption?
A simple, no-cost way to ensure your affairs are always going to be properly
looked after is to draw up what's known as an Enduring Power of Attorney,
or EPA.
An EPA is a legal document authorising another person to act on your behalf
in your affairs. That nominated person, who could be your partner, adult
child, close friend, or solicitor then, becomes known as your 'attorney'.
Just consider this - if you lose your ability to make decisions on your
own affairs and do not have an Enduring Power of Attorney, your affairs
may then automatically be handled by a government department, possibly
for a fee and possibly not always in line with what your wishes may have
been.
An EPA must be executed while you are fit and competent to know what you
are doing.
It's possible to safeguard your affairs while you are in good health and
able to decide on whom you want to be legally appointed to act on your
behalf.
Also, while you are mentally capable, you can choose to revoke your EPA,
or change your 'attorney', at any time.
An EPA gives the person you have nominated to be your 'attorney' the power
to manage your assets and financial affairs and make lifestyle decisions
on your behalf if you become incapacitated, are unable to make those decisions,
or you develop a decision-making disability.
An EPA means that you decide:
- who will make the decisions on your behalf
- what decisions they will make
- who will manage your finances
- how your finances will be managed
The powers under an EPA, unlike those under a 'general'
Power of Attorney, or PoA, continue if the capacity to make decisions
is lost.
An EPA or PoA is as vital as a will. But while a will becomes operational
only on death, the EPA or PoA operates during a person's life.
Under an EPA the power to deal with all or any part of financial, personal
and health matters can be given. An EPA, or PoA, should be made if you
are over the age of 18 and have the capacity to understand the nature
and effect of the power you are giving your 'attorney'.
Please call this office to discuss how to go about drawing up an
Enduring Power of Attorney or Power of Attorney.
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If you're selling your home and an easement exists over
the property, make sure you fill in the contract documents accurately
or you could jeopardise the sale.
Some real estate agents write 'none known' on the schedule beside the
section marked 'encumbrances' - but this is dangerous and could lead to
a charge of misrepresentation if, in fact, an easement is found to exist.
Parties to contracts for the sale of land should make sure, when preparing
contracts, that any easement registered on a property is disclosed to
the purchasing party.
In a recent Southport District Court case a purchaser was allowed to end
a contract of sale and was entitled to a return of the deposit, and the
cost of titles thrown away, because an easement was not made known at
the time of the contract.
The easement was noted in the title deed but not disclosed in the contract.
In the section of the contract covering title encumbrances it had been
marked 'none known' when the property actually included a Gold Coast City
Council easement for drainage purposes.
The easement had been covered by the owners with paving, gardens, steel
gates and a timber pergola attached to the house from a boundary wall.
The owners were required to get Council approval for any structures built
over the easement and if the Council needed to carry out works on the
easement these improvements would have to be removed at the owners' expense.
The Court found that the vendor was not fully disclosing all information
on the contract and that the purchaser was not getting what they were
entitled to.
The Court finding means that contracts that claim there are no encumbrances
when easements do actually exist are false representations by vendors
and real estate agents who have a duty to ensure all registered easements
are made known to the purchaser on contracts for sale.
To ensure you don't get caught, request a Certificate of Title search
on your property before you list it for sale. All registered easements
are identified in this document.
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The new Birth, Deaths & Marriages Registration Bill
2003 means Queenslanders will soon be able to change their names with
much less fuss than previously.
The existing act, the Registration of Births, Deaths & Marriages Act
1962, has been operating for almost 40 years.
Introducing the Bill to Parliament, Attorney-General and Minister for
Justice, Mr Rod Welford, said: "People will no longer have to apply
to the Supreme Court to formally change their name, a complex process
which cost the applicant hundreds of dollars and provided authorities
with no record of the change."
Under the new laws a person will be able to go to the Registrar-General
of Births, Deaths and Marriages, fill in the required paperwork, pay an
$80 fee and change their name.
The Government is also introducing a 'Change of Name Register' which will
see all name changes entered alongside a person's birth name.
"This means that for the first time in Queensland, law enforcement
agencies will have an avenue to find criminals who try to melt away by
changing their name," said Mr Welford.
The new legislation also deals with children's names being changed by
mothers no longer married to the children's father. Under the new laws
mothers must get the father's consent before they are able to change a
child's name.
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Marriage regulations have been amended, reducing the
waiting period in the 'notice of intention to marry'.
Previously a minimum of one month's notice was needed by an authorised
celebrant before the marriage date. There are now exceptions to this regulation
that mean a marriage can be authorised by a celebrant who has been given
permission by the Registrar of Marriage. The exceptions are:
- Employment-related or other travel obligations -
for example, where a person intending to marry has accepted employment
overseas and wants to be married with family and friends attending before
they leave
- Wedding or celebration arrangements which are binding,
or because of a religious reason - for example, non-refundable payments
of a large sum of money have been made for the wedding or a related
celebration and the date cannot be changed
- Medical reasons - for example, a person wishing to
marry, or a close relative, has a serious illness that will stop them
from attending the wedding unless it is held within the month
- Legal proceedings - for example, a person wishing
to marry is subject to court proceedings and at risk of being imprisoned
- Mistakes in giving notice - for example, where considerable
notice was given orally but not in writing because the authorised celebrant
did not explain the procedure to the bride and groom.
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