What is a Power of Attorney?

A Power of Attorney is a document which you sign where you authorise someone else to take care of your affairs and do things on your behalf.  Your attorney effectively steps into your shoes and can make decisions and sign documents on your behalf.  Decisions your attorney makes are legally binding.

How is a Power of Attorney different to a Will?

A Power of Attorney is only valid while a person is alive and is of no use upon your death or incapacity.  After you die, your Will takes over.

What is an Enduring Power of Attorney?

There are two types of Powers of Attorney.  One is a general power of attorney (as discussed above) and the other is an “enduring” one.  A general power of attorney cannot be used after you lose capacity.  On the other hand, an enduring power of attorney keeps working even if you lose your capacity to make decisions.  A good example (or perhaps not so good) is if you had a car accident and ended up in a coma. If you had an enduring power of attorney, your attorneys could continue to sign documents and make decisions on your behalf while you couldn’t.  You might appoint someone under a general power of attorney if you are off on an overseas trip and would like to have someone to sign documents for you while you are away.

Can I appoint more than one attorney?

Yes, you can have more than one attorney make decisions on your behalf.  You can even choose how you would like your attorneys to reach their decisions.  If you have two attorneys, you can say that you want them to make joint decisions and both sign documents together or you can say that you want them to be able to make decisions on their own (either of them separately).  If you have three, you can even require a majority decision.

What happens if my attorney abuses the power that I give them?

You can revoke or cancel the power of attorney document while you still have capacity to make decisions.  If you have lost your capacity, then you can no longer revoke the document yourself.  A person who notices the abuse of power would need to contact a government agency called the Office of the Public Guardian (OPG) for assistance/advice, along with seeking legal advice from a solicitor (where appropriate).

OPG Website: http://www.publicguardian.qld.gov.au/

General and Enduring Powers of Attorney (various forms) are available here: https://publications.qld.gov.au/dataset/power-of-attorney-and-advance-health-directive

Smoke Alarms – is your dwelling compliant?

This year, the Queensland laws on smoke alarms changed.  For existing dwellings (houses/units), as of 1 January 2017, when replacing a smoke alarm, it must be of the ‘photoelectric’ type (the ‘ionization’ type is no longer acceptable under the updated legislation – an easy way to spot these is by the radioactive sticker on them, as they rely on a radioactive material).  Smoke alarms manufactured more than 10 years ago must be replaced immediately, along with any smoke alarm which does not operate when tested.

These changes are part of a larger movement to phase in safer smoke alarms that are interconnected (meaning that triggering one will trigger all of the alarms to sound). The rules that apply differ depending on the situation, as set out below:

New Dwellings and Substantially (50%) Renovated Dwellings (starting 1 January 2017):

Smoke alarms must:
-          be of photoelectric type (as per Australian Standard 3786-2014);
-          not also contain an ionization sensor;
-          be hardwired to the mains power supply (with a secondary power source – battery);
-          be less than 10 years old;
-          operate when tested; and
-          be interconnected with every other smoke alarm (all trigger together).

Properties Transferred/Sold or Leased or Lease Renewed (from 1 January 2022):

Smoke alarms must:
-          be of photoelectric type (as per Australian Standard 3786-2014);
-          not also contain an ionization sensor;
-          be hardwired to the mains power supply (with a secondary power source – battery), although dwellings existing before 1 January 2017 can be hardwired or powered by a 10-year removable battery;
-          be less than 10 years old;
-          operate when tested; and
-          be interconnected with every other smoke alarm (all trigger together).

Existing Dwellings (starting 1 January 2027):

As per the requirements for Transferred Properties discussed above. Essentially once we get to 2027, all property owners must be on board with the new laws.  But for those property owners who substantially renovate or sell/lease/re-lease, they will be forced to be on board sooner.

Interconnectivity can be achieved by a wired or wireless method.

While our focus is on the legal requirements above, earlier adoption of the new measures (rather than waiting for 2022 or 2027 as applicable) is recommended/encouraged.

There are also specific requirements regarding where smoke alarms must be placed, both within the dwelling itself (i.e. which rooms/areas) and the placement of the smoke alarms within rooms (e.g. distances from ceiling corners, light fittings, air-conditioners and fans, etc). 

For more information, refer to this Information Sheet: https://www.qfes.qld.gov.au/community-safety/smokealarms/Documents/New-Smoke-Alarm-Legislation.pdf

or the Queensland Fire and Emergency Services website: https://www.qfes.qld.gov.au/community-safety/smokealarms/
or talk to a professional appropriate to your needs (e.g. property manager, solicitor, electrician, etc).

Be safe and ensure you are compliant today!!! J

Why don't more Australians have a Will?

According to the key findings of a joint publication by UQ, Victoria University and QUT, approximately 40% of adult Australians have not made a Will.*  While this figure isn’t too bad when compared internationally, it is likely that of the 60% of adults who have made Wills, many of those will be out-of-date and in need of changes/updates.  Some may even have been automatically revoked by the act of getting married!

Making a Will can be one of the most important actions you can take to protect your assets and make sure that they pass according to your wishes.  Making sure you have a Will and that it is up-to-date can help reduce stress for your loved ones and reduce the costs involved with administering your estate.  Getting good quality advice on your Will can also help to limit the possibility your wishes will be disputed.  

Despite the importance of having a Will, it appears that excuse making and procrastination is the norm.  Some typical excuses/reasons given for not having a Will include:

-          “I’m too busy and don’t have time.”

-          “All my assets will go to my spouse anyway.”

-          “It’ll be too expensive.”

-          “I don’t have much, so I don’t need a Will.”

If you do not have a valid Will when you die, your assets will be dealt with according to the laws of intestacy (the laws which apply when you have no Will).  This can involve more cost and delay in administering your estate, but also means you have no say over how your assets are distributed.

So, in short, please do yourself and your loved ones a favour in 2017, and make a Will (or update your old out-of-date one)!  In my experience, people always find it less painful than they initially anticipate.

All the very best for a great 2017!!!

*UQ, Victoria University and QUT, ‘Having the last word? Will Making and Contestation in Australia’ (March 2015).

Co-ownership: ‘Joint Tenants’ vs ‘Tenants in Common’ – What’s the difference???

When two or more people buy a property (real property, i.e. land, with or without a built structure) you will be asked by your lawyer how you wish to hold that property.  You will choose either ‘Joint Tenants’ or ‘Tenants in Common’. 

So, what’s the difference?  The key difference is what happens upon the death of one of the co-owners as set out below:

Joint Tenants:  If you hold as ‘Joint Tenants’, each co-owner has a right to the whole of the property, shared equally with the other co-owners.  When one joint tenant dies, the other surviving joint tenant becomes the sole owner (or if there are two or more survivors they continue to hold as ‘Joint Tenants’ between themselves).  This happens automatically!  Regardless of what it says in your Will, the property will pass to the surviving joint tenant (or joint tenants).  Under the current law in Queensland, not even a person who contests a Will by a family provision application can interfere with this!  Most married couples hold as ‘Joint Tenants’.

Tenants in Common: This option allows co-owners to nominate their respective share in the property.  The shares do not need to be equal.  For example, 15%/35%/50%, is an acceptable way for ‘Tenants in Common’ to hold a property (but this is not possible as ‘Joint Tenants’).  Further, on death, a co-owner’s distinct share forms part of their estate and can be left via his or her Will.  Most business partners or investors hold as ‘Tenants in Common’.

Can the type of tenancy be changed?  Usually, yes, but it is easier and more cost-effective to get it right from the start.  A change from ‘Joint Tenants’ to ‘Tenants in Common’ is quite common (and is often done after a couple separates or divorces).  This can be done by agreement between all co-owners or by one co-owner even if the other (or others) don’t agree.  ‘Tenants in Common’ can also be changed to ‘Joint Tenants’, but only if all co-owners agree to do so.

So, when buying real property with another person (or persons), be sure you make a conscious decision as to how you wish to hold the property.  Happy property investing to you all! Till next time… Foxlaw out :)

Landlords and Tenants - Is your lease a 'RETAIL SHOP LEASE'?

When talking about a lease of an area to operate your business from, these leases may be broken into 2 types: 

•          ‘Retail shop leases’; and

•          ‘Non-retail shop leases’ (often simply called commercial leases). 

In Queensland, retail shop leases are covered by a specific Act, the Retail Shop Leases Act 1994, which provides for special rules for retail shop leases.  The main job of the Act is to provide equity (or fairness) in retail leasing.  This is done, in part, by providing some extra rights/protections that do not exist under the general law.

You should not assume a lease is not a ‘retail shop lease’ just because you feel the business does not sell ‘retail’ goods.  The definition set out in the Act requires careful reading and there are some leases which are ‘retail shop’ even though you may not necessarily think of them in that way.  

Therefore, whether a lease is in the initial negotiation stage, or if an issue or dispute has arisen during the life of the lease, it pays to ask the question: Is this lease a ‘retail shop lease’?  The answers to a whole range of other questions can depend on whether the Retail Shop Leases Act applies.  Happy leasing everyone!

P.S. Newsflash: On Tuesday, 10 May 2016, the Retail Shop Leases Amendment Bill 2015 was passed, amending the Retail Shop Leases Act 1994.  These amendments have been in the works for some time.  The changes will only take effect six (6) months after the date of assent.  So… watch this space!  

This is the first blog post of FOXLAW. As such, I think it's appropriate for me to introduce the team! Left to right, we have Jenna O'Donnell (conveyancer), Stacey Kennedy (paralegal) and myself, Josh Fox (solicitor). Based in Rockhampton, we are focused on property and business law and here to assist CQ's property investors and the local business community. We are super friendly too! Plus, we do things a little bit differently to traditional law firms. Going forward, we'll post a variety of articles on property and business law, which we hope our readers will find helpful, interesting and/or entertaining. As always, please seek specific legal advice from your solicitor before taking action in real life... naturally, this blog is no substitute for that! Till next time... Foxlaw out :)