Consumer laws and protections

‘‘Generally, a consumer is someone who has acquired goods or services of a kind ordinarily acquired for personal, domestic or household use…

AUSTRALIAN consumers are provided with protections under the national consumer laws located in Schedule 2 of the Competition and Consumer Act 2010 and titled (quite conveniently) The Australian Consumer Law (Schedule 2 Law)….

The Schedule 2 Law also applies as a law of Queensland thanks to section 16 of our Fair Trading Act 1989 (Qld). It is referred to as The Australian Consumer Law (Queensland); however, for the most part the two laws will be consistent.

I say “for the most part” because section 17 of our Fair Trading Act states we can exclude new provisions of the Schedule 2 Law that were introduced after January 1, 2011.

Whether you are a consumer for the purpose of these laws is determined by reference to an express definition of consumer.

Generally, a consumer is someone who has acquired goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption.

You may also be a consumer if the price paid for the goods or services did not exceed $40,000. Like most laws, there are exceptions.

You should consider your own circumstances when determining whether you were a consumer under the Schedule 2 Law or The Australian Consumer Law (Queensland) when purchasing goods and/or services. These laws provide certain protections to consumers and I am going to be looking at some of those protections over the coming weeks.

Until next week – Keep it Legal!

Katie Caldow
kcaldow@walkerpender.com.au

* The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

Cancellation of superannuation fund insurances

IN CERTAIN circumstances your employer must contribute to your superannuation.

Whether you are currently employed, previously employed or soon to be employed, you need to understand superannuation and what fund or funds you have.

Some people have multiple funds due to, for example, changes in employer and electing a new employer’s default fund.

The Federal Government announced regulatory reforms in the 2018-2019 budget aimed at mitigating the loss of superannuation balances resulting from the payment of insurance premiums for policies automatically provided under some funds.

Total and Permanent Disability insurance is a common example of such a policy.

As part of the regulatory reforms, the Treasury Laws Amendment (Protecting Your Superannuation Package) Bill 2018 was passed.

The Bill introduced section 68AAA into the Superannuation Industry (Supervision) Act 1993 (Cth).

The practical effect is that certain insurances held within inactive superannuation accounts will be cancelled on July 1, this year unless the member expressly requests otherwise.

An account will be considered “inactive” if no contributions have been made to it for a continuous period of 16 months.

Funds are expected to communicate with you during May and June so you may have already received a letter advising of the intended cancellation if section 68AAA applies to you.

Do not panic – simply inform yourself as to whether retention of the policy is right in your circumstances and either elect to retain the policy or allow it to lapse.

Seek financial advice early if you are unsure.

Until next week – keep it legal.

Katie Caldow
kcaldow@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

The Advanced Health Directive

IN THE past two weeks I have looked at General Powers of Attorney and Enduring Powers of Attorney.

Both are formal documents that give another person the authority to make decisions on your behalf. Out of the two, only the Enduring Power of Attorney can provide power to make decisions about personal and health matters.

But what about if you want to confirm your end of life decisions about your health care before you actually lose the capacity to do so?

This brings us to this week’s topic – the Advance Health Directive (“AHD”).

The AHD is also a formal document and can be made by any person over the age of 18 and who has the capacity to make decisions. The AHD sets out the treatment you want (or don’t want), can appoint someone to deal with medical and health matters and provides health care professionals and others with information they need (such as specific medical information, cultural beliefs, allergies etc.). It applies if you are incapacitated and unable to make decisions and are in the final stages of life.

The instructions that you include in the AHD regarding your medical treatment can be general in nature or very specific.

If you change your mind about what is in your AHD it can be changed (provided you retain the capacity to do so) – just like you change your Will when circumstances change.

Unfortunately, accidents and illness can strike at any time and so the best time to prepare an AHD is now – before anything happens.

If you need any advice on preparing or changing an AHD, get in touch with Walker Pender Group Lawyers.

Until next week – Keep it Legal!

Katie Caldow
kcaldow@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

A look at Enduring Power of Attorney

TODAY is the second article in a series of three regarding the types of authority you can legally give to another person to make decisions for you.

The first article looked at the General Power of Attorney (an authority you can utilise for the making of financial decisions).

Today’s article looks at the Enduring Power of Attorney (EPOA).

An EPOA is an official document authorising a person or persons to make financial and/or personal and health decisions on your behalf.

Personal decisions are matters relating to your wellbeing, care and living arrangements. The authority to make financial decisions can commence at any time you choose, including straight away or only after you lose capacity.

However, personal and health decisions can only be made after you lose capacity.

You may recall from last week’s article on the General Power of Attorney that it did not provide for the making of personal and health decision.

The General Power of Attorney ceases should you lose capacity.

An EPOA is a wider document generally used for the long term and does not cease when you lose capacity.

The requirements for making an EPOA are strict as it is important to ensure you understand what it means.

Some people prepare an EPOA when preparing their Will. Like a Will, it may be necessary from time to time to make changes to an EPOA.

If you need advice on preparing or changing an EPOA, get in touch with Walker Pender Group Lawyers.

Next week I will look at an Advance Health Directive.

Until then – Keep it Legal!

Katie Caldow
kcaldow@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

Looking at general power of attorney

THERE are times in life when we need to give another person authority to make decisions on our behalf. Giving power to another person to make such decisions is a very serious matter, which is one of the reasons why the authority must be in writing.

I am going to take the opportunity over the coming weeks to explain the three most common authorities and their differences:

  • Part 1: General Power of Attorney;
  • Part 2: Enduring Power of Attorney;
  • Part 3: Advance Health Directive.

Today’s authority is the General Power of Attorney.

A General Power of Attorney is an official document under which you authorise another person to make financial decisions on your behalf.

It is used whilst you still have capacity to make decisions for yourself, but for some reason you will not be personally available and need another to stand in your place.

For example, if you are travelling overseas, but need legal documents signed in your absence, such as a contract for the sale of land.

A General Power of Attorney will come to an end at the earlier of the following:

  • the expiry of the authority as stated in the document; or
  • when you lose capacity to make decisions.

If you are not sure whether you need a General Power of Attorney, get in touch with Walker Pender Group Lawyers.

Next week I will explain an Enduring Power of Attorney.

Until then – Keep it Legal!

Katie Caldow
kcaldow@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

Social media as evidence in litigation

OVER the past couple of weeks, I have been talking about the relevance of social media posts in the context of family law disputes, in particular, Facebook posts that can be used as evidence.

However, this type of evidence is not just relevant to family law disputes and it is being used in a wide variety of legal matters.

The monitoring and investigation of social media is becoming increasingly common in litigation, particularly in injury and insurance claims and employment disputes (e.g. dismissal of an employee for posts made on social media that breach terms of their employment contract).

Investigation of a claimant’s social media posts (“claimant” being the party who makes the claim) may even take place before the claim has commenced.

An example of such a situation would be if an insured person or company notified their insurer of a potential claim and this then triggered them to start looking at the potential claimant’s social media profile(s) and taking screen shots of potentially relevant posts.

The discovery of relevant post(s) is only one factor though.

What if a claim is later commenced and a further investigation shows that the claimant has since deleted those posts?

It certainly wouldn’t look good for the claimant, but it may also expose them to allegations of fraud and/or even the destruction of evidence.

These are serious allegations and, if there is truth to them, there can be serious consequences.

Until next week – Keep it Legal!

Katie Caldow
kcaldow@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

Family Law part 2 – Facebook and parenting disputes

LAST week, I spoke about Facebook as a platform for domestic violence.

This week, I want to touch on the relevance of social media to parenting disputes.

Parenting disputes are (understandably) emotional affairs, and when emotions run high, it can sometimes be tempting to take to social media to vent frustration about a split.

However, there are good reasons to be cautious about what you post online.

Anything you put on social media platforms like Facebook, Twitter and Instagram could end up before a court if your parenting dispute requires court intervention (even deleted posts can come back to haunt you if a third party took a screen shot of it before it was deleted).

Suddenly, that old post made in anger or haste needs to be explained and often that is not an easy task.

Some people also use social media to keep friends and family informed of what is happening in their life, including when they are going through court for a parenting dispute.

Such posts could be in breach of the Family Law Act 1975 (Cth) if they publicly identify a party to the legal proceedings or a witness.

So what is the takeaway this week? If you are unsure about whether to post something exercise caution and don’t post it. Try to stay clear of social media when emotions such as frustration and anger are clouding best judgment.

Until next week – Keep it Legal!

Katie Caldow
kcaldow@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.

Family Law Part 1 – Facebook and Domestic Violence

USUALLY when people think of domestic violence, they think of physical abuse, but did you know it can include online acts and conduct?

The most common form of online domestic violence is threatening or abusive messages.

In family law matters, courts have taken a wide view of what counts as a threatening or abusive post and evidence from social media platforms like Facebook and Instagram is becoming more common in domestic violence matters before the courts.

In some cases, posting pictures of weapons or cartoons implying violence have been found to be deliberately intimidating. In others, posts that “jokingly” refer to harm befalling someone or that simply use aggressive language have also landed parties in trouble.

Another form of online abuse is stalking and harassment.

While one of Facebook’s features is that it allows you to catch up with old friends, the dark side of this is that it all too easily facilitates unwanted contact.

Even if the messages aren’t threatening or aggressive, constant attempts to get in touch with someone who has asked to be left alone can be considered a form of domestic violence.

Like many areas of the law, it all depends on the circumstances of each case. If you think you are the victim of online domestic violence, talk to a family lawyer who can assist you with taking steps to protect yourself.

Until next week – Keep it Legal!

Katie Caldow
kcaldow@walkerpender.com.au

*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.