Elder Law and Succession

2018/19 Annual Report

The Elder Law and Succession Committee’s particular areas of interest are power of attorney reform (including interstate mutual recognition), legislative progress in succession law, probate practice and the Family Provision Act 1972 (WA).

The Committee liaises with the Law Council of Australia National Elder Law and Succession Committee of which the Convenor is a member, and with the Supreme Court of Western Australia Probate Committee on which a Committee member (currently the Convenor) represents the Law Society.

As part of its work on the National Committee the Committee prepared the Law Society’s submission to the Attorney General requesting a harmonised approach to the recognition of grants of probate made in Australian Courts, so obviating the requirement for these grants to be resealed.

In the past year, the Committee completed its review of the Report of the Statutory Review of the Guardianship and Administration Act 1990 (GA Act). The Law Society made submissions to the Attorney General on the recommendations in the Report, which have been provided to the Department of Justice for consideration when an amendment Bill is at the drafting stage. Further submissions have now been made to the Attorney General drawing his attention to problems that have arisen in relation to the jurisdiction of the State Administrative Tribunal (SAT) as a tribunal, in dealing with cases where parties involved are from different States. This has arisen following the recent High Court decision on Burns v Corbett [2018] HCA15 which has been followed in two SAT cases dealing with the GA Act and two cases dealing with building disputes.

The committee noted the establishment of an expert panel to look into the establishment of an Electronic register of Advance Health Directives and drew the attention of the Attorney General and the panel’s Chair to the existing provisions (section 110ZAA) of the GA Act which have not yet been promulgated but which provide for such a register.

The Committee has been monitoring the progress of the inquiry by the Legislative Council Select Committee into Elder Abuse. The Law Society has provided the Select Committee with the Law Council of Australia’s submission to the Australian Law Reform Commission’s Elder Abuse Inquiry, to which the Committee contributed.

Members of the Committee have also contributed to the Law Society’s briefing paper in relation to end of life choices.

A working group of the Committee is currently adapting the NSW Law Society’s Guide When a Client’s Capacity is in Doubt for Western Australian practice.

The Committee drafted a Law Society submission to the Ministerial Expert Panel on Voluntary Assisted Dying (death certification) after members of the Committee had attended a roundtable discussion on the issue.

The Committee is conducting the following reviews:

  • a review of the Retirement Villages Act 1992 (WA) having regard to recent legislative reforms in Queensland; and
  • a review to extend Statutory Wills to minors.

Committee members presented at two CPD seminars, one on Blended Families in February 2019 and the other on Conflicts of Interest and Testamentary Capacity in September 2018.

For more information about this committee please email General Manager, Advocacy – Mary Woodford, advocacy@lawsocietywa.asn.au