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What you can do to prevent and manage legal issues
- Inform yourself about your rights.
- Get legal advice on your financial and parenting arrangements.
- Make a Will.
- Formalise your property arrangements with a legal agreement.
- Make a power of attorney.
#1: Inform Yourself About Your Rights
The first and most important step is to find out how you are affected by legal issues in your own life. This book is a good starting point, but you may need to use other resources as well.
There are many useful Internet sites, publications and organisations that can give you information. Some are listed in this book. You might also want to get in touch with groups such as the Gay and Lesbian Equality to find out what you can do to help reform our laws. We will only achieve change by speaking out and working towards a fairer system.
#2: Get Legal Advice
You can get free or cheap legal advice or information from Legal Aid WA on 1300 650 579 or a community legal centre. Further legal representation or complex advice may depend on a means test and other guidelines.
Some private solicitors offer a first appointment free of charge or at low cost – always ask about this.
The Law Society’s Law Access has listings of lawyers who specialize in particular areas of law – 9322 4911.
Gay and Lesbian Community Services’ Counselling and Information line has a list of gay friendly lawyers – 9420 7201.
The role of a lawyer is to explain your legal position, give you options, and advise you on the best course of action.
- They must act on your instructions.
- You do not have to take their advice.
- Make sure you ask questions if there’s anything you don’t understand.
- If you encounter discrimination from a lawyer, you can complain to the Equal Opportunity Commission (see the Discrimination section) or the Legal Practitioner’s Complaints Committee.
- Always check costs with a lawyer before signing a contract with them. You can ring around to compare costs and services.
#3: Make A Will
Everyone over the age of 18 should have a Will. Even though you may not think you own very much, everyone has personal possessions that they might want their partner, family or close friends to have.
Making a Will is the best way to ensure that your property goes to the people of your choice.
If you die without a Will your property will be divided up according to a formula in WA law. Changes to the law have given inheritance rights to all couples no matter what sex the people are.
That means that if you have been living with someone as a de facto partner at the time of your death, that person has the right to inherit your property. For the legal definition of ‘de facto partner’ see the Relationships section.
If you are married your spouse may also have some inheritance rights.
If you want to keep control over who inherits your property, you must make a Will.
Despite the new law, your partner’s right to a share of your superannuation may be limited. Leaving it to them in your Will may be the only way they will benefit from your superannuation after you die (see the Work and Money section).
For more information about Wills (and funerals) and what happens if there isn’t a Will, see the Death and Inheritance section.
#4: Make A Legal Agreement
You can formalise property ownership or financial arrangements between you and your partner by making a property agreement. (It is also important to keep financial records and receipts.)
This will help avoid future problems if your relationship breaks down. This is discussed further in the Property section. You can also make a legal agreement about parenting arrangements (see the Parenting section). It is important to get legal advice about these issues.
#5: Authorise Others To Act For You (Power Of Attorney)
Your ‘legal capacity’ to make decisions for yourself can be affected by illness or injury. You can protect your interests in the long term by appointing someone now who will have the power to make important decisions for you if you ever become legally incapacitated (see Types of Powers of Attorney below).
You can appoint your partner or a friend or anyone else you choose. The person you appoint should be someone reliable and who you trust. Before giving someone a power of attorney, discuss it thoroughly with the person you intend to appoint. Your attorney (or guardian) must act ‘in your best interests’. To help them do this you should talk about what you would want in various situations.
If you don’t authorise someone to act for you in future and you become legally incapacitated, decisions will be made for you by someone you haven’t chosen. This could be your ‘next of kin’ (possibly, but not necessarily, your partner) or a guardian appointed by the state government. This is discussed in relation to medical decisions (see the Health section).
‘Legal capacity’
When a person makes any financial or legal decision or transaction, they must have the legal capacity to do so. ‘Capacity’ means that they have to understand the consequences of a decision, be able to take responsibility for making a choice, and be able to make a choice based on the risks and benefits for them. For example, a person might lose legal capacity if they were in a coma or had dementia.
Types of powers of attorney
- Power of Attorney
A general Power of Attorney enables someone to act on your behalf in relation to property and finances. This is the sort of power of attorney you would use to allow someone to operate your bank account while you are overseas. It must be given when you have legal capacity to make decisions and is no longer valid if you lose legal capacity.
- Enduring Power of Attorney
An "enduring power of attorney" is a legal document in which one person gives another the legal authority to make financial and legal decisions on their behalf. A person can only make an enduring power of attorney whilst they are still capable of making those legal and financial decisions for themselves. It does not apply to consent to medical treatment.
An enduring power of attorney must be signed while a person still has legal capacity. It will remain effective even though they may subsequently suffer loss of capacity due to disability or illness. Once capacity is lost through disability or illness, an enduring power of attorney cannot be signed or revoked. You can cancel them at any time as long as you have capacity.
- Guardianship and Administration
If someone loses or doesn’t have the capacity to make decisions and no enduring power of attorney exists then the Guardianship and Administration Board can appoint a guardian or administrator. This gives the appointed person power to make decisions about general lifestyle, day-to-day care and living arrangements. It can also allow the Guardian to consent to medical treatment on the person’s behalf.
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