Snedden Hall & Gallop

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Business News Update

22 February 2012

WHAT HAPPENS IF YOU DON'T HAVE CAPACITY?  

The Powers of Attorney Act  prescribes the phrases 'decision making capacity' and 'impaired decision making capacity'.  The latter concept is defined as:  'the person cannot make decisions in relation to the person's affairs or does not understand the nature or effect of the decision the person makes in relation to the person's affairs'. 

 

As the range of functions covered by an Enduring Power of Attorney is very broad, the law has prescribed certain conditions on how an Enduring Power of Attorney should be witnessed, including: 

 

a) Only one witness to the Power of Attorney can be a relative of the donor; and

 

b) The witnesses must sign a certificate stating that the donor signed the Power of Attorney voluntarily in the presence of the witness and that at the time of signing, the donor appeared to the witness to understand the nature and effect of making a Power of Attorney. 

 

This imposes an obligation on the witnesses to make enquiries, usually by reference to the donor's general medical practitioner as to the capacity of the donor to sign the document.

 

Unfortunately, there are many instances where Enduring Powers of Attorney are challenged in the Courts.  The outcome of such challenges may involve the Public Advocate of the ACT being appointed by the Court to take responsibility for financial and guardianship matters. 


It is important therefore to discuss the issue of capacity with the donor and the medical practitioners in order to provide the effective transfer of authority under an Enduring Power of Attorney in accordance with the wishes of the donor.

CONTRACTORS VERSUS EMPLOYEES
WHAT WILL IT COST YOU?  

A recent article in the Financial Review summarised an important reminder for people dealing with 'contractors'.

 

There was a push, for financial reasons, for people to be retained as contractors rather than employees, which would mean that certain entitlements would not be owing by the contracting party.  However, some cases in the Federal Court have indicated that these people have later successfully claimed leave, workers compensation and superannuation entitlements.


There have been some borderline cases where contractors who have been independent but obtain work from the same contracting party over a significant number of years have actually moved to become classified as employees.


If there is any doubt, you should formally employ a person to avoid having to pay additional entitlements later on, perhaps even going to court and, worse still, have the Tax Office collect the additional super that should have been paid, plus any penalties and fees. 


If in doubt contact our employment department, Bill Andrews on 6285 8087 or Lara Radik on 6285 8094.

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(02) 6285 8000
lawyers@sneddenhall.com.au
www.sneddenhall.com.au
 

 FREE SEMINAR

IS YOUR WORKPLACE SHADY?

 

SUN PROTECTION POLICIES IN THE WORKPLACE

  

Monday 5 March, 2012

3:00 - 4:00pm
 

This seminar will cover how to implement sun protection policies and procedures, and:

* UV radiation and skin cancer risks in Australian workplaces

* Your duty of care as an employer

* The responsibility of employees

* How to protect your business from compensation claims

* Case studies

 * Futher assistance

 

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Book your seat by emailing:

 

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or call:

02 6285 8000

 

NEED MORE INFORMATION?

If you have any questions or queries, or if you'd like request any articles, contact our friendly and professional team today on:

 

02 6285 8000

 

lawyers@sneddenhall.com.au

 

www.sneddenhall.com.au 

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