Are you thinking of purchasing a property off the plan? Property & Commercial Lawyer, Andrea McGarry, explains how to protect your home or future investment.
Unit developments are steaming ahead in the Gold Coast and Brisbane areas. Our skyline is full of cranes erecting everything from duplexes to high rise towers. Behind the exciting buzz of a new development are ‘off the plan’ contracts – and these contracts are not be underestimated. As we have seen with the Ralan development collapse, unit buyers can lose their deposits and life savings, if they don’t do their homework.
Buying a property ‘off the plan’ means you are purchasing a property which is yet to be constructed or have its own lot created from an existing piece of land. It comes as no surprise there are added risks associated with purchasing a property not yet in existence.
So, what should you take into consideration if you are looking at buying off the plan?
If you have found a development you believe suits your requirements, be it as your principal place of residence or an investment, we do not recommend proceeding any further until you can check the following three things off your list.

Do your due diligence on the area the property is set to be located in. We recommend you research the growth of the area over recent years, consider its forecasted growth for the future and compare recent sales of similar styled properties.
Research the developer! The importance of researching the developer cannot be overstated. If you need further convincing – see our recent blog on the collapse of the Ralan Group (link). Where possible, you should inspect the developers previous projects.
Lastly – get the right legal advice! Legal advice from a lawyer who is familiar with off the plan contracts before you sign the Contract is the key to avoiding trouble down the track.

Why should you get advice before signing the Contract?
Off the plan contracts are generally bulky and complicated documents full of hidden clauses. These clauses are often not adequately explained to Buyers by agents or developers. An impartial review of the documents will ensure you know what to expect and there are no nasty surprises along the way.
An example of a common clause in off the plan contracts we often find surprises people is developers generally reserve their rights to change the area, layout, finishes and fittings, location of car parks and storage areas, exclusive use locations and common property.
Other aspects of the Contract your lawyer should give you advice on:

Is the property adequately described? This should include ensuring the Contract includes a detailed schedule of finishes, inclusions, interior plans and appliances.
Is there an obligation for the developer to schedule constructions within a specific amount of time?
Is there an obligation on the developer to use proper materials and ensure the finishes are to a high standard?
Are there provisions in the Contract compelling the developer to rectify defects which may arise?
How long does the developer have to complete the Building? There is usually a sunset date in the Contract to allow the developer to finish the Development. This date will vary however it is important to be aware of the date – as it can be anywhere from two to five years from the date you sign the Contract. This is a risk as it means that by the time the property is complete, the value of the property may have decreased. If the value of the property has decreased it may pose a problem if you are obtaining finance.
Where is the car park located? Is it double or tandem and how far is it located from access stairs or lifts?
What are the proposed body corporate levies? The proposed body corporate levies are just that, “proposed”. In many cases, the body corporate levies are increased after the first year because the “proposed” levies are not enough to cover the outgoings and maintenance of the building and common property.
Are there proposed by-laws?

Get legal advice before you purchase an off-the-plan apartment
Attwood Marshall Lawyers experience Property & Commercial department operate from offices at Robina town Centre, Coolangatta and Kingscliff in Northern NSw. We offer free pre-signing advice on all property contracts with experienced senior paralegals and property lawyers. Call us today for a complimentary appointment to protect your investment: 1800 621 071.
liability of real estate agents
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Choosing an Attorney or Guardian is often a difficult task. An experienced lawyer should be there to help you make the right decision, writes experienced Wills & Estates solicitor, Emily Edmonds.
Choosing an Attorney or Guardian is not as easy as it seems. In NSW, there are two documents that can appoint people to manage your affairs in the event you lose capacity – an Enduring Power of Attorney which deals with financial matters, and an Appointment of Enduring Guardian which deals with health and lifestyle issues.
If you lose capacity, the Guardian is the person who makes decisions about where you will live (such as which nursing home you will live in if necessary), what personal services you receive, what health care you receive, and they can also consent to and refuse medical treatment. A Guardian will also be able to access your confidential medical information such as medical records and test results.
An Attorney is the person who manages your assets and finances. They will have the power to access your bank accounts, sign contracts to sell property, and deal with government departments such as Centrelink on your behalf.
In QLD, there’s just the one document which is the Enduring Power of Attorney, so the people you appoint are referred to as your attorneys. This document deals with both medical and financial issues.
With both the NSW and QLD documents, you can appoint the same person or people to act for both medical and financial matters or you can appoint different people to undertake each of the roles.

How do you decide in which state to register your documents, if you live on the border?
At Attwood Marshall Lawyers, we have lawyers who are experienced in preparing both NSW and QLD documents. During an initial consultation we will sit down with the client and look at no only where they live but where the majority of their assets are held and from there we prepare the documents that are going to best suit their needs.
At what stage of your life should you think about the formal document for choosing an Attorney or Guardian?
The most common mistake the people make when appointing a Guardian or Attorney is that they have left it until it is too late. An accident can happen to anyone at anytime, so for that reason we recommend everyone needs these documents in place. If you have children, or a property mortgage, those elements alone are enough to encourage anyone to ensure their legal affairs are in order should something happen, because your loved ones need to be looked after and have your wishes recorded to do that. We can make these documents at the same time as a Will.
What sorts of things do you look at when choosing a Guardian and an Attorney?
Deciding who you want to appoint can be a very difficult task. Normally, if you are married or in a de facto relationship, you will appoint your spouse. But for people who are single, or are in a relationship with someone who doesn’t have the ability to act as an attorney or guardian, it can be quite tricky.
The main thing you need to think about is who do you trust. And it’s not just a matter of thinking “yeah that person will be ok and do an alright job” because if these documents come into effect, this person or these people are going to have complete control of your life. They will be able to access you bank accounts, sell your property and choose where you live – so you need to make sure you’re choosing people who you trust implicitly and who you know will absolutely act in your best interests.
A lot of people have multiple children and they want to choose all of them for this role – is that a good idea?
This really depends on the situation and the family dynamics. If you have say three children that all get along really well, and there isn’t one who’s living overseas or something like that, and you’re confident that all three would be able to act together harmoniously then having all three of them might not be a problem. Keeping in mind that if you appointed all three of them to act jointly, they would all need to be available in circumstances where they needed to make decisions or sign off on certain documents etc.
You’d imagine whether they get along is also a big consideration?
If however you had three children, and there was one in particular that didn’t get along with the other two, then there’s no way that you would appoint all three of them to act together because it’s very likely that instead of being able to come together quickly to make important decisions on your behalf – they’d be more occupied with fighting amongst themselves and trying to get the third person to agree which is not a situation you want to be in when you’re lying in a hospital bed needing someone to act quickly for you.
How do you help clients to understand who they can trust, during an appointment?
It is tough – we see so many clients who come in and they’re absolutely torn about who they should appoint because they don’t want to upset any of their children. It is not about trying to keep everyone happy. We work through the emotional issues first, try to put them aside; be objective. Then look at real-life scenarios such as…accessing bank accounts, etc, look at examples of real life scenarios to help people to understand who is the person for the role. By the end of the process we usually have a very good idea of who the best person is to appoint as Guardian or Attorney.
In worst case scenario – what would it look like if you chose the wrong person?
Guardians and Attorneys can into play when you have suffered loss of capacity. If you do decide to appoint someone who you know probably isn’t the best choice but you choose them because you simply want to keep the peace, you can end up in all sorts of trouble. or perhaps you’ve been involved in an accident and you’ve suffered a brain injury, so you no longer have any idea about what’s going on, and this person can then come along and access you bank accounts, they can sell your property and they can put you into a nursing home.
What do you do if you want to change your attorney or guardian?
If you have documents in place and you want to change who you have appointed then this needs to be done properly. We see a lot of clients who think that they can just rip up their Enduring Power of Attorney or Appointment of Enduring Guardian and that’s the end of it, but it’s not. For someone to be removed as an attorney or guardian, a formal Revocation needs to be prepared and signed, and this then needs to be sent to the person who you no longer want as your attorney or guardian. If you don’t serve this Revocation on them, then they can still use the documents if they have copies of them, even if you don’t want them to be able to.
How do lawyers help you to choose your attorneys and guardians, and why you should seek legal help to do this?
The most important thing to remember is that Guardians and Attorneys are appointed when you have lost capacity.
As I mentioned at the start of the interview both must be reliable and trustworthy, and at Attwood Marshall we are trained and experienced in how to determine who is best for this role with you, by looking at real life scenarios of when and how these important people in your life have to make decisions for you.
With the incorrect person appointed as a Guardian or Attorney, when you have lost capacity, you may find yourself in dire circumstances – such as being put into a nursing home you don’t want to be in. Or, in the worst case – the person appointed may use money from your account for things you wouldn’t approve of.
It is possible change your attorney or guardian, so if you have heard anything today that has changed your mind you should urgently seek legal advice on how to do that, otherwise the appointment of a Guardian and Attorney can take place at the same time as you write your Will.
For a free Estate planning review to help you with choosing an Attorney or Guardian, phone 1800 621 071.
 
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Attwood Marshall Lawyers welcome the Federal inquiry into the Earle Haven but continue to urge former residents to seek legal advice should they have been adversely affected by the evacuation of the retirement village on July 11.
The Government announced on August 5 an investigation will examine the circumstances leading to a collapse in the provision of aged care services at Earle Haven.
The Inquiry will be led by Ms Kate Carnell AO and to take into account the objects of the Aged Care Act 1997 and the Aged Care Quality and Safety Commission Act 2018 and in particular the protection of the health and well‑being of consumers of aged care services and the accountability of the providers of the care for the funding and for the outcomes for recipients.
The inquiry’s terms of reference will consider 13 key areas, including:

– Whether adequate emergency planning procedures were activated when residents were evacuated
– Whether the contractual relationship between Earle Haven owner PeopleCare and HelpStreet included provisions which could have prevented the events

– Whether a breakdown of monitoring by government departments led to the crisis
– If appropriate risk management and emergency planning was in place and activated
– What actions either PeopleCare or HelpStreet did to alert State or Commonwealth authorities
– Whether the existing monitoring by the Department of Health and ACQSC was adequate and how they might be improved
– If adequate controls were in place to manage Refundable Accommodation Deposits of residents
The Inquiry will be able to ask questions “of any person, company, department, agency or other entity” and would consider public submissions from former residents.
The Inquiry may make any recommendations related to its findings including recommendations for legislative reform, systemic change or on matters incidental to its findings.

The Inquiry is required to submit its findings and recommendations to the Minister for Aged Care and Senior Australians, Senator the Hon Richard Colbeck, in October 2019.

Attwood Marshall Lawyers’ position on Earle Haven
The inquiry will not pave the way for former residents to receive compensation for their trauma, financial losses or for the unfair unauthorised transactions of their bank accounts.
Attwood Marshall Lawyers will submit the following into the inquiry:

Residents were owed a duty of care to the highest possible standard by the companies operating Earle Haven
Residents should not have been left without care or forced to leave their home
Companies responsible should be held liable for any losses or psychiatric trauma caused by their negligence or breach of contract

Former residents who were affected in any way by the evacuation are encouraged to seek legal advice on their individual circumstances, by phoning Attwood Marshall Lawyers on 1800 621 071.

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Donating a gift to charity in your Will is a special way to help others after you have passed away. Experienced Wills & Estates solicitor, Amanda Smith, explains how you can bequeath to charity in this special blog for the National Jockeys’ Trust.
Many people decide to leave a bequest to charities in their Wills where they don’t have the means to donate to charities during their lifetime. It is a great opportunity for them to leave a gift in their Will after their liabilities, funeral arrangements and family members have been looked after.
Other situations where people leave a gift to a charity in their Will is where they don’t have any family members to leave their estate to or they feel very passionate about a particular charity. The National Jockeys Trust is a charity which looks after jockeys who have become sick or injured, by purchasing for them things like medical aides, wheelchairs and other personal and household items.
How to nominate the National Jockey’s Trust
It is important when considering leaving a bequest to a charity that you choose a charity that is genuine. Your lawyer will be able to assist you in ensuring that the charity you pick is a registered charity. If you choose the National Jockey’s Trust word similar to the following may be used in your Will:
I leave to The National Jockey’s the sum of $……………. / or percentage / or the whole/rest and residue of my estate (complete as appropriate) for its General Purposes (or other specified purposes+)
+ If a bequest or whole of the residuary estate is proposed to be left for a specific purpose, or includes assets that may be subject to capital gains tax. Ensure you get legal advice from a lawyer before inserting any clause into your Will.
What can legally constitute a gift
There are different types of bequests you can leave to a charity in your Will. You could leave a cash amount – this can be any amount you would like, large or small. You also have the option of leaving a specific item e.g. property, cars or shares. Another option is to leave a percentage of your estate. This can be any percentage, it’s entirely up to you. The beauty of leaving a percentage of your estate is that your liabilities will have been paid prior to the gift being made and it allows for fluctuation of your assets. Whereas if you leave a cash gift this amount will be paid no matter the value of your estate when you pass away. The downside of leaving a specific item is if you no longer own the item at the date of your death then the charity will miss out.
You also have the option to specify if you would like your gift to be used for a certain purpose within the charity. Your lawyer will be able to provide further advice regarding this and can liaise with the charity of your choice to ensure that your wishes are fulfilled.
How is the gift bequeathed
The first step is to nominate the charity and bequest in your Will. You may need to update your Will or make a Will if you have not done so before. Bear in mind that you can amend your Will as many times as you like throughout your lifetime (as long as you have the capacity to do so).
After you pass away it is your Executor’s job to gather all your assets and distribute them as per your Will. It is important to consider appointing a lawyer as an executor of your Will to ensure that your wishes are carried out and the bequest to the charity is followed through.
If you die without a Will your estate will be distributed in accordance with the laws of intestacy. This could result in your estate going to unwanted family members or if you have no family left after you die, your estate could go to the Government.
How Attwood Marshall Lawyers can help
It is important that you obtain legal advice when preparing your Will and ensure that it is prepared correctly, and your wishes are followed. Leaving a gift to a charity in your Will is part of your overall estate plan and there are many factors which need to be considered.
We offer a free 30 minute Will review with one of our estate planning lawyers where you can discuss leaving a bequest in your Will to a charity.
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Attwood Marshall Lawyers Legal Practice Director Jeffrey Garrett spoke to 4CRB community radio about the advantages and disadvantages of having lawyer be appointed as the executor of an estate.
What is an executor of a Will?
An executor is the person nominated to wrap up all of the personal, financial and legal affairs of a deceased person’s estate. If the deceased person has not had their estate planning professionally carried out by a solicitor, or has neglected it entirely, the role can be a difficult, time-consuming and emotional.
The following is not an exhaustive list but outlines some of the duties as Executor:

Taking steps to ensure the Will is the deceased person’s final Will
Making sure the last will is a valid testamentary document
Steps may also need to be taken including obtaining a Barrister’s advice or an application to the Court as to the interpretation of the terms of the Will, particularly where the terms of the will are uncertain or poorly drafted;
Ascertain all the assets and liabilities of the Estate
Determine whether Estate assets are or ought to be insured and maintain them
If the deceased operated a business, ascertain what steps need to be taken to ensure it continues to operate
Ascertain whether any superannuation the deceased had forms part of his/her Estate
Notify all the beneficiaries in the Will and keep them informed;
Determining if you need to apply for Probate of the Will (or another type of grant)
Lodging Tax returns for the deceased and or the Estate
Obtaining advice regarding any tax liabilities (other than payment of income tax) of the Estate e.g. Capital Gains Tax
Ensure all the debts of the Estate are paid
Defend any proceedings brought against the Estate.

When can an Estate be challenged

Family Provision Claims – This is a contest, if you like, between family members for the funds and property of a deceased estate. The law relating to the issues involved in such a contest is found in the Family Provision Legislation in each state. There is usually no dispute regarding the validity of the will itself but instead, one or more of the family members have not been provided for or believe he or she has not been properly provided for by the deceased.
Unpaid creditors – When someone believes that you aren’t the best person for the job or that the Will is valid, they can put what’s called a caveat over the estate.
Caveats over a Grant – A caveat is a court notice that prevents certain things from happening without informing the person requested the caveat.
Civil actions brought against the deceased that continue after his/her death

How to remove or change an Executor
If you are named as an executor and you do not want this responsibility you don’t have to go through with it. If you decline, a different executor of the estate can take on your duties. If there isn’t another person or solicitor named, you can apply to have a court-appointed administrator take the reins.
Appointing a lawyer as Executor
Many family and friends are happy to act as an executor; however, choosing a professional Executor to administer your estate has many benefits. The main benefits are:

Responsibility

When a loved one passes away it is a very difficult time for family and friends. There is a lot to manage when administering an estate and it is a very responsible role. A professional executor can relieve family and friends of the burden of administering your estate.
Further, if an estate is not administered correctly the executors can be held personally liable for any claims brought against the estate.

Expertise

A professional executor will have the necessary expertise to deal with your estate. There can be many complex matters during the administration of an estate such as sorting out the deceased’s tax affairs, selling a property and managing investments.
By appointing a professional executor, your beneficiaries can be reassured that all matters will be dealt with correctly.

Impartiality

Unfortunately, tensions amongst family members and friends are common. This can cause difficulties in the administration of an estate especially if siblings are in dispute.
A professional executor can ensure that all matters are dealt with impartially and in the best interests of the estate.  Further, if any of the beneficiaries have any queries, as stated above, the executors will have the necessary expertise to answer those queries.

There will always be someone available to act

If a friend or family member is appointed as your executor, and at the time you pass away your executor is unable or unwilling to act then the Non-contentious Probate Rules governs who will act as your personal representative. This may fall to someone who you would not want to administer your estate. Further, if they act inappropriately it will be a very difficult and drawn out process for your beneficiaries to remove the personal representative.
Therefore, appointing a professional allows you to retain control. Further, if you appoint a solicitor’s firm or trust corporation to act on your behalf, there will always be someone who is capable of stepping into the role as your executor.

Costs

Some people may be concerned about the costs when appointing a professional executor. However, administering an estate is a complex process and even if a friend or family member is appointed it is likely that they will appoint a solicitor to act on their behalf.
Therefore, the costs associated with appointing a professional executor or appointing a friend of family member are much the same.
Do you have more questions about your new role? Contact us today on 1800 621 071. Our team of highly experienced lawyers can advise you on any questions around Wills, estates and trusts.
liability of real estate agents
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Attwood Marshall Lawyers are proud to announce the Caulfield Cup Race Day at the Gold Coast Turf Club on Saturday October 19, 2019, will sponsor the National Jockeys Trust.
The 8-even race card which expects over 20,000 through the gates and racehorses from the nation’s top stables will fundraise for the Trust which supports severely injured jockeys.
Legal Practice Director Jeffrey Garrett said gold coin donations, an online donation drive, raffles, and auctions, will raise funds so financial grants can go directly to jockeys.
“The Attwood Marshall Lawyers Caulfield Cup is a key meet on the Spring Racing calendar, and this year, will acknowledge and support the jockeys who have been injured.
“Jockeys are at the heart of the racing industry and, as elite athletes they put their bodies on the line for this high stakes sport, so it is a privilege to be able to give back to them.”
National Jockey’s Trust CEO Paul Innes OAM, said donations to the Trust are distributed directly to registered jockeys, who can apply for a financial grant in their time of need.
“Any jockey who has suffered a fall on the racetrack or in training can apply for a financial grant from the Trust to go directly to purchases such as wheelchairs and home aids.
“The demand in the trust is surging, with 5 Qld jockey applicants since January, so we are grateful to have the support of the Attwood Marshall Lawyers Caulfield Cup to help.”
Attwood Marshall Lawyers is Gold Coast largest and longest serving firm, with a legal arm dedicated to Thoroughbred Racing Law.
Gold Coast Turf Club chief executive Steve Lines, said Attwood Marshall Lawyers sponsorship of the Cup has been secured to 2021.
“Attwood Marshall Lawyers have had a long affiliation with the Gold Coast Turf Club, the Silk Stocking and previously the Hollandale Cup, so it is great to have the firm on board to 2021 for the Caulfield Cup.
“Punters at the Attwood Marshall Lawyers Caulfield Cup can expect an extraordinary day of racing, beautiful Spring weather, our improved grounds, all while supporting a great cause.”
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Attwood Marshall Lawyers encourage Earle Haven evacuees and their families to seek legal advice on RAD bonds, exit fees and other compensation, writes Legal Practice Director, Jeffrey Garrett.
Legal options for evacuated Earle Haven Retirement village residents
Attwood Marshall Lawyers are investigating the potential of an Earle Haven class action on behalf of former residents against the companies and or agencies involved in the operation, administration and management of Earle Haven nursing home.
Rights of redress for the affected residents and their families would be as follows:
1. Claiming a refund of any daily rate charges billed to the residents for expenses deducted from their bank accounts (these were in many cases billed in advance and were deducted from the residents’ bank account the day after the shutdown of the premises);
2. Recovery of any costs associated with moving from Earle Haven to any new facility including transport costs, daily rate costs incurred at the new facilities (which would be at the higher rate because of them not holding a refundable accommodation deposit) (RAD);
3. Applying to have any exit fees or deductions waived from any RAD paid to Earle Haven (the refundable accommodation deposits would range from $300,000 to $500,000 and quite often there are significant percentages of this amount that are lost if you pass away or move to another facility);
4. Damages for any psychological or physical injury suffered as a result of the sudden shutdown of the facility and failure to provide the usual sustenance and medical care required of the residents. The family members of the residents affected may also have a claim for damages for psychological injury resulting from the anxiety and stress in dealing with the sudden eviction of the residents;
5. Compensation for any losses suffered as a result of switching to alternate facilities, including any additional payments that are required for the RAD or any other associated expenses. There are also residences who will need to be kept in hospitals pending the availability of care facilities which could also incur further costs and out of pocket expenses as a direct result of the wrongful shutdown of the facility.
Anyone affected by the sudden closure may contact Attwood Marshall Lawyers on 1800 621 071.
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The State’s most vulnerable, such as the elderly and mentally impaired, have become better protected as sweeping changes to the State’s guardianship laws come into effect across Qld.
The Guardianship and Administration and Other Legislation Amendment Bill 2018 was passed in March in response to Queensland Law Reform Commission’s review of laws governing the State’s guardianship system.
The bill acts on the Commission’s recommendations to strengthen the focus on contemporary practice and human rights for adults with impaired capacity, to enhance safeguards for adults with impaired capacity and improve the efficiency and clarity of Queensland’s guardianship system.
The bill is extensive, taking under its ambit a range of legal documents, instruments and administrative bodies, which deal with the appointment, duties and functions of medical and financial guardians. The new laws also interact with existing laws about succession and advanced health care.
Enduring Guardians
One aspect of the legal reform deals with Guardians appointed through Enduring Guardian (EG) and Enduring Power of Attorney documents (EPOA) and Administrators appointed by Queensland Civil and Administrative Tribunal.  Administrators and/or Guardians make personal, health and financial decisions on the behalf of a person who has lost capacity. A person of any age can lose capacity with a mental illness, brain injury, dementia or other disease. Administrators can make financial decisions, and legal decisions related to financial matters, on behalf of the adult. Guardians can make decisions on personal, health and lifestyle matters as well as other legal matters not related to the adult’s finances or property.
The new laws ensure:

Persons meet strict eligibility requirements before they can be appointed to be someone’s Guardian under an EPOA
Clarified capacity tests are met before an adult can execute an EPOA

Guidelines to assist in the assessments of capacity to be progressed alongside other reforms being carried out by the Department of Justice and Attorney-General, including the review of Advance Health Directive and EPOA forms, and the preparation of explanatory guides to assist Queenslanders to engage in advance planning.
Advanced Health Care Directives
The amended legislation deals with health decisions which need to be made in a hospital setting once a person has lost capacity. In Qld, in such situations, as Advanced Health Care Directive come into play.
The new laws ensure:

Clarified capacity tests are met before an adult can execute an Advanced Health Directive

My Health Record
Advanced Health Care Directives can be stored on My Health Record – an online storage and management system for each individual’s health information, such as prescriptions, vaccinations, allergies, and results of pathology tests.
My Health Record only contains a summary of your health information, not a detailed record like your GP would keep. My Health Record is administered by the Australian Digital Health Agency (ADHA). Summary information flows into your My Health Record from Medicare, GPs, public and private hospitals, specialists, pathology, diagnostic imaging, allied health, and aged care.
Many people already have a My Health Record already as it’s been available for several years. It was previously known as a Personally Controlled Electronic Health Record (PCEHR) or eHealth record. However, now all Australians will have a My Health Record made for them automatically unless they opt out by 31 January 2019.
Other areas of amendment
ADEMPTION
The term ademption refers to the circumstances where a gift dealing with specific property under a will fails because that property has since been sold or otherwise disposed of. The amendments passed include the introduction of a statutory exception to ademption.
When an attorney under an EPOA or as an administrator deals with the testator’s property that is a gift under a Will, the beneficiary is entitled to the same interest in any surplus money or other property arising from the sale or other dealing with the property. This will give effect to the testator’s intentions before he or she lost capacity.
CONFLICT TRANSACTIONS

Prohibitions exist to stop Attorneys and Administrators from entering into conflict transactions;

ELDER ABUSE

Protections are in place for whistle-blowers who disclose confidential information about conduct they believe could involve abuse, neglect and exploitation of an adult with impaired capacity;

ATTORNEY’S DUTY TO ACT

Queensland Civil and Administrative Tribunal has greater power to order an attorney who fails to comply with their obligations to pay compensation and to appoint an administrator for a missing attorney;

Attwood Marshall Lawyers
The new laws are welcome and have broad reach, as we will all at some point be touched by the guardianship system. It is important you seek legal advice when drafting EG, EPOA, Will and Advanced Health Care Directive documents. It is important those documents preserve your wishes and preferences for your future care and needs. Your legal representative may have a thorough knowledge of the new Qld laws and how they can affect your situation.
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If a client has suffered a life-changing injury and has asked you for help to lodge their Total Permanent and Disability claim, you could be tempted to fill out the forms yourself. However, for the best possible outcome for your client and to protect yourself from potential legal action should the claim go wrong, it is critical to seek proper legal advice for a TPD claim, writes Senior Personal Injuries Paralegal Amy Lewis.  
Professionals such as accountants and insurance brokers may from time to time receive an inquiry from a client seeking help with the lodgment of a Total and Permanent Disablement claim.
The client may be suffering a physical or psychological injury, be highly stressed and call upon you to try to fill out claim forms on their behalf. To ensure the best possible outcome for the client and to protect yourself from legal action, you should seek out proper legal help immediately. Here’s why:
TPD insurance policies vary greatly
The definition of Total and Permanent Disablement (TPD) can vary greatly between funds and insurers. Each policy is different and, just like any otpolicies can be lengthy and difficult to understand. The differences in policies can be established by reading the policy contract clauses. One example of a clause which can affect the TPD claim process is the amount of hours an individual has worked before making their claim. This clause can affect the amount of TPD a claimant is eligible for or the eligibility of a claimant to make that claim. This is especially the case with many casual employees. It is critical to understand a clirnet’s policy and all its clauses when making a claim to avoid unfair rejection.
Attwood Marshall Lawyers can read and understand the policy of a claimant and use sound legal experience to legally advise what clause is applicable to a TPD claim. Attwood Marshall Lawyers has years of experience lodging TPD claims with insurers and our Personal Injuries Department has a confident legal grasp of the different types of TPD policies which exist. Our team draws upon the expertise of Compensation Law Accredited Specialist and Firm Partner, Jeremy Roche to ensure TPD claims are lodged after the detailed consideration of all the applicable clauses of a TPD policy to an individual’s claim.
Professional Negligence and legal advice
In the process of assisting a client with a TPD claim, you may cross the line into giving legal advice outside the scope of your practice. To ensure that you and your practice are protected for a Professional Indemnity Claim, it is essential you do not provide quasi-legal advice to clients in relation to their TPD claim. While your professional expertise may be genuinely required, for as taxation law is complex, your client should get professional tax advice, giving advice on the legal process, medic0-legal evidence and policy clauses can mean you are acting outside of your scope.
The effect for you is three-fold:

A professional negligence claim made against you by the client for incorrect advice
A finding by your Professional Indemnity insurer that you breached your duty of care by undertaking specialised services you are not qualified or expected to provide
A breach of the professional code of conduct relevant to your industry. For example, the codes of professional conduct for both CPA’s and Chartered Accountants stipulate that accountants are precluded from carrying out work which is required by law to be performed by a legal practitioner.

The TPD insurance claim process is a lengthy legal one
A common misconception is that the TPD process claim is simple, however the process of making a TPD claim can be stressful and overwhelming at the best of times for you and your client. There are claim forms to be completed, medical reports to be gathered and financial material to be provided. By engaging Attwood Marshall Lawyers to lodge your client’s TPD claim, this takes a large amount of administration work off your firm and your client. At Attwood Marshall Lawyers, we have access to government portals such as the ATO which allows us to request client financial records in a timely manner. Given we deal with a large range of medical professionals, we have access to resources which you may not.
Often, the first attempt at a TPD claim is rejected by the insurer
In the event where an insurer denies a claim, having a lawyer who understands the TPD policy and legal wording can assist a great deal. Your client’s claim may come down to a technicality which you may not pick up on. It is always best to have a lawyer lodge the TPD claim from the start rather than approaching a lawyer after the claim has been rejected.
How Attwood Marshall Lawyers can help
Professionals are entitled to accept instructions from solicitors who work in separate legal firms and to provide assistance to lawyers in relation to litigation or to provide advice on matters within their competence. We assist professionals with initial advice on whether they are giving legal advice within their scope. We also help most TPD clients with a No Win, No Fee client agreement in that the client does not pay our fees unless they are successful in making a TPD claim.  If you think you may have a client in need of assistance, please contact our experienced Personal Injuries Legal Department to discuss the matter. Our Department Manager Kelli Costin is able to give a complimentary first phone consultation in regards to any TPD case.
liability of real estate agents
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There is a need for urgent intervention by the State Government into the cladding crisis, writes Commercial Litigation solicitor, Charles Lethbridge.
Attwood Marshall Lawyers’ commercial litigation department acts for unit owners, bodies corporate, builders and developers in commercial and insurance litigation cases, including class actions.
From 2 July, insurers will remove full cover for the majority of Queensland’s 500 building certifiers, which could lead to an immediate cancellation of their registration under state law.
Insurers are concerned about the cost of removing combustible cladding from buildings and potential law suits from unit owners/bodies corporate following the Grenfell tower disaster in 2017, which killed 72 people.
However it is our view that insurers have long been aware of the dangers of combustible cladding and now in keeping with their standard dishonest business models, they are stepping away to leave an industry in crisis.
Thousands of building approvals could be stalled along with payments to tradies and in turn costs could rise for property buyers. Surveyors and certifiers have warned the industry is at significant risk.
The Government has shifted the onus back onto owners, with the Queensland Building and Construction Commission (QBCC) writing to the owners of 1300 Gold Coast buildings, asking for them to investigate the materials used in buildings or face fines of up to $20,000.
Bodies corporate and unit owners may be faced with massive building rectification bills which they have to pay themselves. They may also try to seek legal recourse against developers, builders, engineers and tradespeople involved in the construction of their buildings.
Some developers have been loud in their reproach of the State Government, however as an industry, developers have been using cheap cladding and other sub-par materials on the coast for many years.
We see time and time again developers using poor building products or materials and poor construction methods to minimise overheads and then down the track they seem surprised that those buildings contain serious fire hazards or significant leakage problems, for example.
We have acted for members of a class action against a prominent Gold Coast developer in relation to a building product it used in the construction of a multi-unit building and we are currently acting for a trades company which has been joined to the Cathedral Place class action in Brisbane.
We are also investigating a Robina unit block with serious leakage problems and damage.
The State Government should review certification processes – there needs to be an independent authority which ensures rigourous certification processes are undertaken during construction because clearly the current system is failing.
The cladding crisis is the tip of the iceberg in the building industry. Moving forward, there are going to be many cases involving dangerously constructed multi-unit buildings.
We expect it is only a matter of time before a Mascot-type evacuation hits the Gold Coast.
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If you are merely ‘passing on’ information from the vendor to your buyer, you must ensure that information is correct, otherwise you could be held liable, writes Property & Commercial Partner, Barry ven Heerden.
Real estate agents’ liability when passing information along is high. We are aware of cases where agents are being charged with misconduct because the agent merely passed information he received from his vendor client to a purchaser which information later on appears to be incorrect.
In a court case in New Zealand (Red Eagle Corp Ltd v Ellis) the defence by an agent that he was “merely passing” on information received from his vendor client was discussed.
Sometimes agents pass information on from the vendor or a third party and therefore act as a “mere conduit” in passing on the information. This is a valid defence by agents but there are limits to the defence. The Supreme Court has defined this defence as follows:-
“In order to be seen to be a “mere conduit” the conveyer of misleading or deceptive information must have made it plain to the recipient that he or she is merely passing on information received from another without giving it his or her own imprimatur – that is making it appear to be information of which the conveyor has first-hand knowledge.”
What should real estate agents do?
It is usually not easy to succeed with this defence and we always advise agents to at least attend to the following:

Always advise buyers, preferably in writing, to conduct their own due diligence despite anything the agent told them
When passing on information to buyers, put on record the information comes from the vendor (or other 3rd party) and confirm you as agent have no independent knowledge of the correctness of the information
Be careful not to read pre-purchase reports (like a pest and building report) and then use the findings of the report in marketing the property

It also happens that vendors provide incorrect information to an agent who then passes this information on to an innocent buyer.
We are aware of a case where the vendor told the agent the building was compliant and approved by Council. Based on this information the agent advised the vendor to remove an “as is” clause in the Contract because such a clause may limit the value of the property.
As it turned out, the information was incorrect in that the building was not compliant or approved. The vendor was hit with a massive bill to get the building compliant and approved.
The vendor then filed a complaint against the agent for misconduct stating the agent was not supposed to suggest the removal of the “as is” clause in the Contract.
The Tribunal changed the charge to unsatisfactory conduct and stated there is an obligation on an agent to ensure information they receive from their client and pass that information on is correct.
Even though this may sound unfair it appears to be the current law and we therefore recommend agents always:-

Check all information received from vendors and/or third parties relating to the property. Information they provided might not be correct.
If the information is incorrect don’t market the property despite any instructions from the vendor to market the property.
Always advise your client to obtain legal advice from a property lawyer before making any amendments to a Contract.

Should you require any assistance please do not hesitate to contact our Property & Commercial Department.
liability of real estate agents
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Queensland laws should be changed to better protect riders, pedestrians and motorists, writes Compensation Law Accredited Specialist and Partner, Jeremy Roche.
A surge in e-Scooter related injuries and Australia’s first fatality from a crash highlights the urgent need for tougher e-Scooter compensation laws so that riders, pedestrians and motorists, have clear recourse for a personal injury compensation claim.
In May, a 50-year-old man suffered critical head and facial injuries after crashing his e-scooter at South Bank. He later died in hospital from a heart attack, triggering a call by the Pedestrian Council of Australia chairman Harold Scruby for e-scooters to be banned.
The death followed the release of statistics showing that in the first two months e-scooters were introduced to Brisbane, more than 120 people made trips to the hospital with an injury.
Injuries included head trauma, upper and lower limb fractures, sprained/strained limbs and serious contrusions/abrasions and in about 10 per cent of cases, surgery was required.
The Chair of the Royal Australasian College of Surgeons (RACS) Trauma Committee Dr John Crozier urged that public awareness of the dangers associated with e-scooters was needed.
The legal fraternity has also voiced their concerns about e-scooters. As it stands there is legal ambiguity around e-scooter compensation laws which leave Queenslanders at risk of not being covered by personal injury insurance, should they suffer an e-scooter related injury.
This is illustrated in a shocking case earlier this year when a woman (pictured) seriously injured in an e-scooter accident was offered a pittance of $250 in compensation with some discount vouchers, in exchange for a confidentiality agreement to settle her claim.
Injured riders, pedestrians or motorists involved in an e-scooter crash must be compensated for the hurt, distress and costs they have suffered. Further, Queensland’s taxpayers should not have to carry the hospital treatment costs of riders.
What’s wrong with current e-scooter laws?
As it stands, a legal provision to class e-scooters as a “personal mobility device” has allowed manufacturers to dodge registration and Compulsory Third Party insurance cover.
The Qld Transport act was amended in December 2018 to take in e-scooter use.
e-scooter riders aren’t allowed to drive on roads with speed limits over 50 kilometres per hour, and must keep to the left, of a road or footpath, to avoid being a traffic hazard.
These laws are not detailed enough. They are vague, subjective and fail to identify reckless behaviour by a rider. The laws also fail to quantify the precise speed or sufficient distance needed to allow for safe stopping. They are open to legal challenge.
If you are a pedestrian and an e-scooter rider hits you, can you sue?
A compensation lawyer could potentially make a claim against the e-scooter manufacturer, lessor and, or the council, however councils have added protections under the Civil Liability Act that make claims against the council difficult to win.
The manufacturer or lessor would likely argue the accident was caused by the negligence of the rider and nothing to do with them.
If an e-scooter is covered by a public liability insurance policy, there is potentially a public liability claim that an injured pedestrian can make against the rider and the e-Scooter company, and its insurer.
But depending on the policy, it may be the case that an insurer can also blame the rider to avoid paying the claim out.
If no public liability insurance applies or the accident takes place on a road, pedestrians who have been hit by an e-scooter have little recourse for compensation because the devices are not registered like a car and not covered by Comprehensive Third Party insurance.
Ordinarily, if a pedestrian is hit by a motorcycle or a car, they can make a claim under laws in QLD and NSW for damages including pain and suffering, medical costs, carer costs, income loss and medical aids.
Without an insurer to sue, an injured pedestrian can be left seriously out of pocket with no legal recourse against a negligent rider, who can’t afford to pay damages.
There is no point suing the e-scooter rider personally – they usually can’t afford to pay the compensation required, and if they can, they go bankrupt or take other action to avoid paying debt.
Can an e-scooter rider sue for compensation?
An e-scooter rider may be able to lodge a claim against an e-scooter manufacturer in response to a product fault, however injuries caused by the general use of an e-scooter may not be covered.
A manufacturer may, as part of its terms and conditions of use, reserve the right to hold the rider personally responsible for any damage involved in the use of an e-scooter, including personal injury or injury to a pedestrian.
What needs to happen?
The laws should be changed to ensure all pedestrians who have been injured by an e-scooter can claim personal injury compensation.
The government needs to step in and regulate e-scooters so that public liability insurance is mandatory and steps have been taken so that the e-scooter company can’t pass the buck onto a rider and say it’s their fault not ours – similar to a CTP claim.
E-scooter companies and/or its insurers should not be able to “pass the buck” regarding liability onto the scooter rider and absolve the e-scooter company of liability.
Every citizen should be protected from a situation where they suffer injury or death as a result of an e-scooter accident and have limited to no recourse to compensation for their injuries, despite being an innocent party and suffering injury or death as a result of the negligence of another.
The government should tightly regulate the use of motorised e-scooters and ensure that riders and members of the public are covered by a policy of insurance in the event that they are injured as a result of an e-scooter accident.
The government should consider whether we need to change CTP laws with respect to e-scooters so that claims can be made under the motor vehicle compensation acts – after all, scooters can be driven by riders with no licence, on roads up to 50km/hr, and accidents are continually reported in the media.
The government should also ensure proper education of the public about the rules surrounding e-scooter use. Citizens understand the rules for bicycles but are usually at a loss to explain rules surrounding e-scooters or e-scooter safety.
What should local councils do to grapple with the situation?
In the wake of a fatal or other injury to a rider or a pedestrian, e-scooters would be a detriment to local tourism but of greater concern is the effect of such a collision on the victim and their loved ones.
Without fair compensation, victims have little chance to regain their health or quality of life.
Given the number of accidents occurring, and the fatality, it is appropriate to consider the consequences of someone being injured before tragedy strikes
Attwood Marshall Lawyers has received enquiries from people injured on e-scooters but there is limited to no recourse available for those injured as a result of an e-scooter rider’s negligence.
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Sound legal advice is imperative if you have been rejected for a professional negligence claim, writes Commercial Litigation solicitor, Georgia Taylor.
Professionals such as insurance brokers, accountants, financial advisers, building consultants, real estate agents and architects owe their clients a duty to act with reasonable care and skill. If you, as a professional, fail to do so, your client has the legal right to claim compensation for financial loss suffered as a result. To be faced with such a claim is personally and professionally taxing, even if the claim is without merit. Don’t wait until it’s too late – get sound legal advice on your professional indemnity insurance at the outset, and if you have been rejected for a professional negligence claim you need a lawyer’s help every step of the way.
Starting point – your professional indemnity insurance
Rejected for a professional negligence claim? The main source of financial protection you call upon is your professional indemnity insurance policy. Your indemnity insurance policy should be brokered by an expert in the field of your profession and you should take a close look at what you are covered for. Be mindful that while most professionals have compulsory certifications that encapsulate a pro-forma indemnity policy, this is not guaranteed (or likely) to cover other members of your practice or non-professional employees.
What to do when you have received a professional negligence claim
If you have notification of a professional indemnity claim take the following steps:

Immediately seek legal advice as to your notification requirements under your insurance policy
It is important to seek legal advice about the notification requirements under your policy. This may be an email to alert your insurer of a possible claim. In other cases, a full claim form must be lodged at the same time. Your practice should also be briefed on the workings of your insurance policy around the same time. A lawyer can help you to understand the terms of your policy and your obligations under them, to ensure you notify your insurer correctly and your team is properly briefed.
In line with the legal advice you receive, act fast on making your insurance claim
The next stage is dealing with an insurance company. Prior to submitting your claim to your insurer, you should seek legal advice to properly draft and analyze your claim’s information to reduce the chance of an insurer knocking your claim back on the first try. An insurer does not want to pay out money, so don’t give them a reason to think you don’t know what you’re doing. If a lawyer provides you with sound advice on the merits of your claim and helps you to prepare and lodge your claims form you can be confident of an optimal result without a premature denial of the claim.

What to do if you have been rejected for a professional negligence claim
If you have lodged a claim without legal help, seek legal advice from a solicitor with experience in insurance litigation and negligence litigation on how to appeal the rejection. Attwood Marshall Lawyers Commercial Litigation team can handle your insurance claim while defending your professional negligence claim. Having one firm handling these affairs is vital as to not affect or prejudice either matter.
When appealing a rejection for cover, a lawyer is able to help you to understand your policy. Insurance policies position themselves to be read in layman’s terms however it’s the fine print, that a lawyer can decipher, that is usually the most useful to a policy-holder. Lawyers will assess things such as ‘exclusion clauses’ in your policy (which offer an easy escape route for an insurer to reject your claim) and likewise, an additional claim avenue can be missed when it’s time to lodge a claim only due to lack of knowledge about the policy and the claimable event.
Prevent problems before a claim – check your policy
An insurance policy chosen by a broker may not necessarily be the best fit for you and your profession, especially if you market in a niche area. As a professional you should carefully review the terms of your policy and seek legal advice as to the effects it may have on you and if it is really the right policy to fit you and your business. In seeking legal advice prior to entering into an insurance policy, you negate the possibility of paying for a policy that is simply not a fit for your purpose. A solicitor is able to read over your policy and provide sound advice on its effects, coverage and exclusions and provide you with the advice on necessary amendments to the policy and tell you if the policy is just not right for you at all. Attwood Marshall Lawyers Property & Commercial Department provides legal advice in this area.
READ MORE: Actionable Steps To Avoid, Mitigate or Defend A Professional Negligence Claim
How Attwood Marshall Lawyers can help
If you have have been rejected for a professional negligence claim, please contact our Commercial Litigation Department Manager, Amanda Heather on direct line 07 5506 8245, email [email protected] or free call 1800 621 071. We have an experienced dedicated Commercial Litigation team that practices exclusively in these areas. Please click here to access our team brochure with details of our professional staff.
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