Frequently Asked Questions

Corporate & Commercial: Does my privacy policy comply with privacy laws?

Unless you’ve reviewed it lately, probably not.

New privacy laws were introduced in March 2014. The laws known as the Australian Privacy Principles are a new set of privacy principles affecting the handling of personal information.

If you have a website privacy policy you should review it for compliance with the new privacy principles.

The new laws aim to bring Australia’s privacy laws (first introduced in 2001) in line with current technology trends and to provide more transparency around the capture and use of personal information.

The principles apply to organisations and Government agencies and hefty fines may apply for non-compliance.

The principles make it more difficult for you, as a business, to collect information about consumers without their knowledge and changes how your business can handle, use and store personal information, and engage in direct marketing.

If your business is affected, you may need to update your privacy policy and your procedures and systems to comply with the law.

Which businesses do the privacy laws affect?

If you generate more than $3 million in annual turnover and you handle personal information, your business is affected. If you generate less than $3 million but your business is “trading in personal information” you may also be affected by the changes in the law.

What does “trade in personal information” mean?

Personal information is information that identifies, or could reasonably identify, an individual. This includes names, addresses, dates of birth and bank account details.

Trading in personal information includes collecting or providing personal information to a third party for a benefit, service or advantage. If you collect personal information and then provide it to a business to manage your direct marketing, you may be trading in personal information.

What are the key reforms?

The key reforms affecting small businesses, particularly in the online space, are that:

  • your privacy policy must address specific topics; and
  • you must have procedures and systems in place to ensure you comply with the new laws.

Companies face fines of up to $1.7 million for serious or repeated breaches of the Privacy Act. Sole traders and entities that are not companies face fines of up to $340,000.

How do I make sure my business complies?

You should conduct a review of your business and identify how you deal with personal information. You need to address the following elements:

Privacy Notice. When you collect personal information, inform individuals of your organisation’s name, contact details, the purpose of collection and to whom it will be disclosed.

Privacy Policy. Your privacy policy must address the required topics including:

  • What personal information you collect.
  • How you collect the personal information.
  • The purposes for which you use and disclose it.
  • If you provide personal information to parties overseas you need to disclose that and, if practicable, specify the countries where those parties are located.
  • Setting out how you secure and store personal information.

Systems. Establish a system to make sure:

  • Staff who handle personal information comply with the new privacy laws.
  • Individuals can access their personal information and correct out of date or incorrect information.
  • You have a process to deal with complaints about your compliance with the laws.
  • Recipients of direct marketing material are able to unsubscribe.

Conclusion

You should review your business policies and procedures and identify how you deal with personal information. Following the review you should get your privacy policy in order and have procedures and systems to comply with the new law.

Need more information, assistance or advice on how to proceed? Get in touch with our business law Geelong team on (03) 5273 5273 or info@coulterroache.com.au today.

Wills, Estates & Succession Planning: What is an enduring power of attorney (medical treatment)?

An enduring power of attorney (medical treatment) is a legal document that enables another person to make medical treatment decisions on your behalf. Because this type of power of attorney is enduring, it will endure or continue after the time that you are unable to make decisions for yourself.

The power to make medical treatment decisions on your behalf will begin when you are unable to make those decisions for yourself, through a loss of capacity. The power will end upon your death.

Why should I have one?

Losing the capacity to make decisions for yourself could occur at any point in your life and for a number of reasons including:

  • dementia
  • brain injury caused by an accident
  • illness.

In the event that you lose capacity, an enduring power of attorney (medical treatment) is the only way that you can have control over who will make medical treatment decisions on your behalf.

What decisions can an attorney make?

Generally your attorney has the power to agree to or refuse medical treatment. However this power is limited by the following:

  • Medical treatment can only be refused if the treatment would cause you unreasonable distress or the attorney reasonably believes that you would consider the treatment unwarranted.
  • An attorney cannot refuse medical treatment to alleviate pain or suffering when a person is dying.
  • An attorney cannot agree to medical procedures that:
    • are likely to lead to infertility;
    • relate to your involvement in medical research;
    • terminate a pregnancy; or
    • involve the removal of tissue for transplant.

Your attorney also has the responsibility:

  • to act in your best interests;
  • to make, wherever possible, the decision that you would have made; and
  • to avoid situations where there is a conflict of interest.

Wills, Estates & Succession Planning: What is a testamentary trust?

A testamentary trust or "will trust" is created, as the name suggests, through a will. Unlike a trust created by a Deed of Settlement signed during lifetime, the will trust does not come into effect until death.

Why should I consider using a testamentary or will trust?

Provided Age Pension Planning is irrelevant and the income earning assets of a couple are substantial, there can be significant tax and other advantages for a surviving spouse and family when this form of trust is in place.

How does it work?

  • Upon the death of a spouse, the earning assets of the deceased pass to the will trust.
  • The surviving spouse will normally be the sole trustee and sole appointor of the trust, meaning that they have absolute control of it.
  • In this capacity, the surviving spouse has the power to distribute income earned from the trust to he or she or to any beneficiary. Beneficiaries may include children and their spouses, grandchildren and great grandchildren and their spouses.
  • When the surviving spouse dies, if all children are to inherit assets equally they will become the trustees of that will trust and decide how best to use that trust in the future.
  • The wills of each parent in turn would normally then provide that the surviving spouse’s assets pass to separate trusts, one for each child. Depending on the ages of the children and subject to how long you seek to defer the children from having complete control, the trustees and appointors could be other senior family members, friends or advisors until each child turns say 30-35 or whatever you choose.

What are the advantages?

  • There is a tax advantage where income is distributed to beneficiaries below the age of eighteen. The beneficiary in question will be entitled to the adult tax-free threshold of $6000 compared to the tax-free threshold of $643 if income were distributed from a normal family trust.
  • There is a deferral of the capital gains clock where assets are held within the trust until the death of the primary beneficiary.
  • A child can take capital distributions from the trust at any time with the consent of the trustees or have distributions made to another family member.
  • No child will be disadvantaged by taking an inheritance through a trust because the child may either exercise a right given by the will to take the inheritance personally, rather than through the trust, or the trust can be fairly easily dismantled at any time.
  • Flexibility in distributing income, taking into account the tax position of each family member. In particular, the Testamentary or Will Trust can be of great advantage where there is a family member:
    • In a bad relationship
    • Inclined towards gambling
    • Under the influence of drugs or alcohol
    • At the risk of being declared bankrupt
  • While the assets are held in the respective will trust, they are not assets of the child and can remain in that state to protect them against a threat of bankruptcy. If that situation ever arose, it would be essential to have at least one additional person appointed as a trustee along with the particular child to avoid a trustee in bankruptcy stepping into the shoes of the person.
  • Many grandparents are taking the opportunity of setting up a will trust with the specific intention of assisting in the education of their grandchildren. This is achieved by money being allocated directly to grandchildren for their education purposes rather than it being processed through the parent at normal tax rates.
  • A trust that is well constructed can provide protection against will challenge, particularly in relation to farming land.
  • A trust when compared to a company is relatively private and cheaper to administer.

Need more information, assistance or advice on how to proceed? Get in touch with our Wills, Estates and Succession Planning Geelong team on (03) 5273 5273 or info@coulterroache.com.au today.

Wills, Estates & Succession Planning: What are my responsibilities as a power of attorney?

Someone has just asked me to be his/her power of attorney. What does this mean?

The donor in choosing you to be his/her enduring power of attorney is entrusting you to act in his/her best interests. If you accept this trust and the enduring power of attorney, you will be taking on serious responsibilities. If you fail to observe these responsibilities, you could be removed as attorney or even convicted of an offence and required to pay compensation. Your responsibilities are both general and specific.

General responsibilities (to guide you in decision-making)

You must exercise the power given to you honestly and with reasonable care. It is an offence not to do so, and you may also be required to compensate the donor.

You must comply with the terms of the enduring power of attorney and any other requirement of the Court or VCAT. In addition, you must abide by the general principles on which the Act is based, which include:

  • presuming that the donor has the capacity to make a particular decision until there is conclusive evidence that this is not the case;
  • recognising his/her right to participate in decisions affecting his/her life to the maximum extent for which he/she has capacity;
  • respecting the donor's human worth and dignity and equal claim to basic human rights, regardless of his/her capacity;
  • recognising the donor's role as a valued member of society and encouraging his/her self-reliance and participation in community life;
  • taking into account the importance of the donor's existing supportive relationships, values and cultural and linguistic environment;
  • ensuring that your decisions are appropriate to the donor's characteristics and needs;
  • recognising the donor's right to confidentiality of information.

Specific responsibilities

  • Duty to keep records. You must keep accurate records of dealings and transactions made under the power as VCAT or the Court or the Public Advocate may require you to produce them. You must keep these records separate from your own affairs where possible. For example, if you dispose of an asset you should keep records about the disposal.

Where there are joint attorneys, then it is sufficient that by agreement one of the attorneys will retain a record or account of transactions or dealings.

  • Duty to keep property separate. You must keep your property separate from the donor's property unless you and the donor own the property jointly.
  • If the donor's capacity to make decisions is impaired, you must also get approval from VCAT or the Court for any transactions that have not been authorised in this document.
  • Duty to avoid transactions that involve conflict of interest. You must not enter into transactions that could or do bring your interests (or those of your relation, business associate or close friend) into conflict with those of the donor.

However, you may enter into such a transaction if it has been authorised in this document or by VCAT or the Court.

When does my power to make decisions begin?

The donor may nominate in their Power of Attorney document when your power to make financial decisions begins.

If the donor does not nominate a date or event or occasion when a power becomes exercisable, then your power begins immediately. However, while the donor retains capacity, you must act in accordance with the donor's directions.

Need more information, assistance or advice on how to proceed? Get in touch with our Wills, Estates and Succession Planning Department specialists on (03) 5273 5273 or info@coulterroache.com.au today.

Family Law: What family law services do you provide?

Coulter Roache provides an extensive range of family law services in a sensitive, professional and confidential manner.

These services include:

  • Divorce and property settlements
  • De facto and same sex disputes
  • Children's issues
  • Spousal maintenance and child support
  • Binding Financial Agreements
  • Intervention Orders

Four experienced family law practitioners represent our firm. They regularly appear in State and Federal Courts including the Family Court, Federal Magistrates Court and Magistrates’ Court of Victoria – in Geelong and Melbourne. 

Our family lawyers in Geelong emphasise conciliation and mediation processes to resolve disputes as an alternative to the very expensive, stressful and time consuming court process. The Head of our Family Law team is also trained in the area of collaborative law which focuses on resolving matters amicably and without litigation.

We provide advice and representation, including advocacy, directly and swiftly. Our lawyers are well aware of the emotional and economic effects of a marital breakdown and work closely with accountants, psychologists, psychiatrists, and financial advisers to ensure you understand your representation and advice.

Family Law: What do I need to think about when my relationship breaks down?

When a relationship breaks down, you need to consider many important issues including:

  • Where your children will live and what contact they will have with each parent
  • How property will be divided
  • Payment of Child Support
  • Whether there is a need for, or an obligation to pay, spousal maintenance
  • Applying for a divorce
  • Reviewing wills and nominating new beneficiaries for superannuation funds. 

The following points may help you deal with these issues:

  • Matters concerning children are never final and are capable of alteration, particularly if it is in the children’s best interests for there to be a change.
  • Child Support Agency assessments are capable of review, administratively, on a number of grounds, including if the payer’s true earnings are not reflected in the current assessment made by the Agency.
  • You can apply to the Federal Magistrates’ Court for a divorce 12 months after separation and you should consider doing so, if such a time has elapsed.
  • For married couples, an application to the Court for property or spousal maintenance must be made within 12 months of a divorce taking effect. You should consider making such an application well before this period expires.
  • In the case of a de facto relationship an application for division of de facto property must be made within two years of separation. You should consider making such an application well before this period expires.
  • For married or de facto couples, an agreement for the division of property is only binding where an order has been made by a court under the Family Law Act 1975 or a financial agreement has been entered into in accordance with the Family Law Act 1975.
  • Married or de facto couples may also enter into a Financial Agreement prior to or during a de facto relationship or marriage which governs how, in the event of any separation, their assets may be divided and whether spousal maintenance will be paid. Such an agreement will only be binding where it complies with the requirements of the Family Law Act 1975.
  • It is very important you review your will if your family circumstances have changed, for instance, if you have recently separated, divorced or married or indeed, if there has been a change to your financial situation. 

Our Family Law team emphasises alternative dispute resolution, mediation and collaborative law to minimise time, costs and emotional stress on relationships and family members.  We can refer you to family support and counselling services if required.

Remember that each family law matter is different, and the outcome of your matter will depend upon the individual circumstances of your case. It is important to get advice regarding your particular circumstances to determine your rights and obligations.

For further assistance or information, contact our family law Geelong team on (03) 5273 5273 or info@coulterroache.com.au today.

Family Law: When communication fails, what can I do?

Separated couples often face the difficult realisation that they are no longer able to communicate effectively with each other. Problems that could once be resolved, appear insurmountable or incapable of resolution.

Often once lawyers are engaged and the first communication is received from a solicitor, the possibility of resolving children and property matters amicably seems even more remote.

Did you know there are many services available to help resolve family differences without the need for extensive and often provocative negotiations through lawyers? Options include counselling, family dispute resolution, mediation, collaborative law or other non-litigious dispute resolution options including informal conferences between you both and your practitioners. 

The advantages of using such alternative services are numerous. You are both given tools to help you reach your own agreement – that is, to resolve matters as you would have before your relationship broke down, albeit, with the help of another person or persons. The financial and emotional costs of engaging lawyers and proceeding to a Court hearing are reduced significantly – often the only need for lawyers is to advise you as to your options and ensure your paperwork is drawn appropriately. 

If you have children you have little choice but to continue in a relationship as parents. Again, alternative dispute resolution systems can help improve your communication into the future.

The Family Court encourages you to avoid litigation where possible and to try to reach agreement using alternative systems. Under the Family Law Act 1975, parents are now required to participate in Family Dispute Resolution prior to applying to a Court for a decision regarding their children, except in limited prescribed circumstances such as where violence or urgency exists. Your family lawyer should have information available to give advice concerning such services. They can broker the subject of counselling with the other partner or their solicitor. Often the hardest aspect of alternative dispute resolution is getting the separated partners to agree to participate in the first place.

For more information about services and options, get in touch with our family law Geelong team on (03) 5273 5273 or info@coulterroache.com.au today.