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Resources

On Capacity

The LIV Capacity Guidelines and Toolkit

The Capacity Guidelines and Toolkit (the Toolkit) is an essential guide for all practitioners in their daily practice. The Toolkit provides practical, useful and concise information about what to do when a client’s capacity is in doubt, the requisite capacity standard for different types of legal transactions and the powers and functions of substitute decision makers. The Toolkit was amended in February 2018 to reflect changes resulting from the Medical Treatment Planning and Decisions Act 2016 (Vic).

The full version provides in-depth information about many of the ethical issues relating to capacity and includes a full resource index, which practitioners can refer to for further information. The LIV Capacity Guidelines and Toolkit and Guidelines is available to purchase online.

The abridged Concise Edition is a quick reference point for practitioners, and is available online to download as a PDF.  

The Law Society of New South Wales

When a client's capacity is in doubt - A Practical Guide for Solicitors

The Queensland Law Society

Queensland Handbook for Practitioners on Legal Capacity

Guardianship and Administration Bill 2018

The Guardianship and Administration Bill 2018 is currently before the Victorian Parliament.

If passed, the Act is scheduled to commence on 1 March 2020.

Further updates and resources will be available soon.

Voluntary Assisted Dying Act 2017

The Voluntary Assisted Dying Act 2017 (Vic) will commence on 19 June 2019.

Further updates and resources will be available soon.

Medical Treatment Planning and Decisions Act 2016

View information here.

Powers of Attorney

The Powers of Attorney Act 2014 (Vic)

The Act came into force on 1 September 2015, bringing with it some drastic changes to substitute decision making in Victoria. The Act abolished enduring powers of attorney (guardianship) and replaced them with enduring powers of attorney (financial and or/personal). Appointing a medical agent under an enduring power of attorney medical treatment remains unchanged, governed by the Medical Treatment Act 1988 (Vic).

The new Act makes Victoria Australia’s first jurisdiction to legislate for supported decision making through the appointment of a supportive power of attorney.

New offences have been created under the Act, which apply to old and new powers of attorney where the contravening act(s) occurred on or after 1 September 2015. Contraventions by an attorney are compensable under the Act, even following the death of the Principal.

Office of the Public Advocate

The Office of the Public Advocate (OPA) website contains a wealth of information on powers of attorney, including information for principals, attorneys and witnesses and appointment forms.

OPA also have an advice service, staffed Monday to Friday, 9am–4.45pm, at 1300 309 337.

Supreme Court Notice to TFM Practitioners

On 11 December 2017, the Supreme Court issued a Notice to TFM Practitioners outlining its concerns that some practitioners were failing to comply with Paragraph 7.2 of Practice Note SC CL 7 (‘Paragraph’). The Paragraph requires, prior to the first directions hearing, the plaintiff to file and serve an affidavit or position statement and an affidavit by the plaintiff’s solicitor with a costs estimation to the end of mediation. 

 

From 1 March 2018, unless special circumstances can be shown, practitioners are expected to comply with the requirements of the Paragraph by 2.00pm on the Friday before the date listed for the directions hearing. Failure to comply may result in the Court adjourning the matter on its own motion to the next available date. Continued failure to comply may result in the cost of adjourned hearings being awarded against the non-complying party.

View the Notice to the TFM Practitioners (PDF)

View the Practice Note SC CL 7 – Testators Family Maintenance List (PDF)

Foreign Resident Capital Gains Withholding Payment Measure Practitioner Guide

On 1 July 2016, a new foreign resident withholding capital gains tax measure commenced. It has a significant impact on Australian lawyers and their clients involved in property transactions. Consequently, it is vital that Australian legal practitioners become familiar with the measure to ensure they are able to properly advise clients regarding their legal obligations.

Download the free guide for members (PDF).

Wills and Estates Fact Sheets

Community Fact Sheet - Wills & Estates (PDF)

LIV Referral Service

Find a succession lawyer or accredited specialist in wills and estates through the LIV’s referral service.

Annual Reports

View the LIV's annual reports, which date back to 2000, to find out more about the activities of the Succession Law Section and Committee.