31 January 2024

Death on your own terms: Voluntary Assisted Dying in New South Wales

In November 2023, the Voluntary Assisted Dying Act 2022 (the “Act”) came into effect allowing some people or “eligible persons” under the Act to access voluntary assisted dying.

What is voluntary assisted dying?

Voluntary assisted dying allows eligible persons to request medical assistance to end their life voluntarily and legally. Voluntary assisted dying is not a form of suicide.

Voluntary assisted dying is defined as “the administration of a voluntary assisted dying substance and includes steps reasonably related to the administration” (Schedule 1 of the Act).

The administration of a lethal substance is one of the last steps in the voluntary assisted dying process. To get to this stage, there is a strict eligibility criteria which must be met and several steps which must first be taken.

So, who is an eligible person?

To access voluntary assisted dying, a person must meet the eligibility criteria which is set out below. A person must:

  1. Be an adult (18 years old) who:
    1. Is an Australian citizen; or
    2. Is a permanent resident of Australia; or,
    3. has been a resident in Australia for at least 3 continuous years.
  2. Be a resident of NSW for at least 12 months.
  3. Have at least one disease, illness, or medical condition that:
    1. Is advanced, progressive and will cause death, and
    2. Will, on the balance of probabilities, cause death within a period of 6 months (12 months for a condition that is neurodegenerative, for example, motor neurone disease); and
    3. Is causing suffering that cannot be relieved in a way that the person considers tolerable.
  4. Have decision-making capacity. This is defined under section 6 of the Act which sets out a number of factors, for example, that the person can understand and remember the information or advice given to them about voluntary assisted dying.
  5. Be acting voluntarily.
  6. Not be acting under any pressure or duress.
  7. Have an enduring request for voluntary assisted dying.

If a person only has a disability, dementia, or a mental health impairment, they will not be eligible for voluntary assisted dying.

If someone is an eligible person, what is the process involved with voluntary assisted dying?

There are 11 steps in the voluntary assisted dying process. Below is a summary of what will occur at each step.

  1. The First Request: The patient makes a clear and unambiguous request for voluntary assisted dying to a doctor. No one can ask to undergo voluntary assisted dying on behalf of a patient. Only the patient can ask for medical assistance to die.
  2. The First Assessment: If the doctor accepts the first request, they will coordinate the voluntary assisted dying process and assess the patient’s eligibility for voluntary assisted dying.
  3. Consulting Assessment: After the first assessment, another doctor will provide a second opinion on whether the patient is eligible for voluntary assisted dying.
  4. Written Declaration: If the patient is determined by both doctors to be eligible for voluntary assisted dying, they will write a declaration.
  5. Final Request: This final request makes it clear whether the patient would still like to access voluntary assisted dying.
  6. Final Review: A final review is then undertaken by the first doctor.
  7. Administration decision: At this stage, the patient decides whether they would like to take the voluntary assisted dying substance by self-administration (taking the substance themselves) or by practitioner administration (a nurse or doctor will administer the substance to them).
  8. Medication Authorisation: The patient’s doctor will apply for the medication and the Voluntary Assisted Dying Board will need to grant approval.
  9. Medication prescription: The voluntary assisted dying medication is prescribed.
  10. Take medication: The medication is taken or given to the patient, depending on their choice.
  11. Notification of death: After the patient’s death, the relevant forms are completed.

The voluntary assisted dying process can be stopped at any time. Further, if at any stage throughout the process, the person permanently loses the capacity to make decisions in relation to voluntary assisted dying, i.e. they no longer have decision-making capacity, they are no longer eligible for voluntary assisted dying.

You can read more information about this process here: https://www.health.nsw.gov.au/voluntary-assisted-dying/Pages/process.aspx

If I am not happy with a decision, can I review it?

The Supreme Court of NSW can review decisions made at various stages of the process.

Can I make a direction for voluntary assisted dying in my appointment of enduring guardian?

No. Voluntary assisted dying cannot be prescribed through an enduring guardian or a power of attorney. The request for voluntary assisted dying can only be made by the patient, no one can request that it take place on their behalf.

Contact us

The Act has only recently come into force, and it is in the early stages of implementation.

If voluntary assisted dying is something you are considering, it is important to obtain current medical and legal advice about this issue. Uther Webster and Evans has extensive expertise in succession and estate matters and can provide you with advice and guidance. Please contact our offices on (02) 9290 1177.

Disclaimer: The contents of this article is for informational purposes only and does not constitute legal advice, nor is the contents of this article intended to be a substitute for legal advice or to be relied upon as such.

18 December 2023

Urgent Need for Provision out of Deceased Estate

Written by Justine Taylor

Making an Application under s62 of the Succession Act 2006 (NSW)

In some instances, an urgent application may need to be brought seeking an advance or interim provision out of a deceased estate, where a plaintiff has brought proceedings and has urgent needs to be met.

Correspondence will usually be exchanged between the solicitors acting for the estate and the solicitors for the plaintiff in the first instance. However, if an agreement is not able to be reached with respect to any interim provision, an application can be made to the Court by the plaintiff under s62 of the Act, seeking an Order for interim provision to be made.

Such an application was recently considered in the decision of Byrd v Margiotta [2023] NSWSC 1556, by Justice Meek who reiterated the relevant principles that the Court will take into account, including:

  1. The onus will be on the plaintiff to demonstrate that an interim Order shall be made;
  2. Generally, eligibility should not be in dispute for the making of an interim application;
  3. The plaintiff must be able to demonstrate that their case, at final hearing, is more than arguable that provision would be made;
  4. It is necessary that on the balance of probabilities, after fully considering the untested evidence, that no less provision than what is proposed in the interim Order would be made in favour of the plaintiff at the final hearing;
  5. The making of an interim Order is entirely discretionary, even if the other pre-conditions are satisfied. Such an Order is permissive rather than compulsive;
  6. The discretion is fairly wide, but it is not unlimited. Such discretion will be exercised judicially (fairly and reasonably);
  7. The Court will not be required to determine the precise Order for provision that the Plaintiff may receive at final hearing, and need only form the opinion that the plaintiff will receive no less than the provision by way of final Order;
  8. A relevant consideration may be whether the plaintiff is able to repay the lump sum in the event the interim provision Order was revoked, although there may be cases where the Court would make an interim provision Order for an impecunious applicant;
  9. An interim Order takes effect as a Codicil to the Will under s72 of the Act (in other words, it operates to amend the Will).

If pertinent information is required to assess the prospects or merit of an estate claim, it is important to obtain advice and assistance from a solicitor and UWE have specialists in wills & estates that can assist.

30 November 2023

Do I get a copy of the will?

Do I get a copy of the will? When is there a reading of the will?

It is often assumed, as in movies, that following the death of a family member the solicitor will call the relevant family into a room and engage in the dramatic exercise of ‘reading of the will.’

Solicitors often receive requests in the recent weeks and months following death to read the will or provide a copy of the will, estate planning documents, relevant inventory, draft probate applications and beyond.

In NSW, s54 of the Succession Act requires a person that has possession or control of a will of a deceased person to allow certain categories of persons to inspect or be provided with a copy of the will (at their own expense).

Categories of persons entitled to inspection include; any person that is referred to in the will, (or in an earlier will), the surviving spouse or defacto, a parent or guardian, any person that would be entitled on intestacy (if there was no will), any person who may have a claim at law or in equity, a creditor or former attorney.

Requests that go beyond inspection of the will should usually be raised between solicitors, who will need to understand and assess the basis of that request, and will need to be mindful of a solicitors obligation to retain confidentiality under Solicitors Conduct Rule 9.

The Supreme Court recently considered the solicitor’s obligation to share information about the circumstances in which a will was prepared, before a grant of probate has been made in Re Estates Brooker- Pain and Soulos [2019] NSWSC 671. The Court observed that the sharing of confidential documents prior to a grant by the solicitor may be problematic, absent Court order.

If pertinent information is required to assess the prospects or merit of an estate claim, it is important to obtain advice and assistance from a solicitor and UWE have specialists in wills & estates that can assist.

13 April 2023

Personal Guarantees: Liability for Directors

Written by Holly Eastway

The recent case of Pugwall v Arthur McKenzie Investments Pty Ltd [2022] VSCA 272, in the Victorian Court of Appeal, serves as a reminder of the risks of personal guarantees for directors, revealing the dangers of personally guaranteeing the obligations of a company, especially where one may consider themselves safe under the corporate veil.

The Facts

A joint venture agreement (“JVA”) between two constructions companies, concerning the development of residential units in Seaford, Victoria turned sour following issues with funding.

Mr Clark, the sole director and secretary of one of the parties, and Mr McKenzie the sole director and secretary of the other, gave personal guarantees on behalf of their own respective companies.

The problem was that, despite being personally named as guarantors within the JVA, neither Mr Clark nor Mr McKenzie signed the JVA in their personal capacities.

First Instance Decision

The trial judge held, among other things, that McKenzie could not be held liable in his personal capacity pursuant to the guarantee.

On Appeal

The Court confirmed that the court will assess a party’s intention to be bound to the terms of a contract on the basis of an objective construction of the document as a whole, rather than the subjective, uncommunicated intentions of that party.  Upon assessing the JVA in its entirety, it was found that the JVA evidenced the intention for the guarantors to be personally liable and that the formal way in which a party signs a contractual document, will not be determinative of a party’s intention.

Mr McKenzie submitted that his signature to the JVA was only in his capacity as sole director/secretary, and that no signing clause was provided for him in his personal capacity as guarantor.  However, the Court found on appeal that the entirety of the JVA evidenced otherwise.

Key Takeaways

Pugwall v Arthur McKenzie Investments Pty Ltd is a potent reminder of the dangers of personal guarantees. It demonstrates the importance for lawyers to understand the wide ramifications of commercial relationships gone bad and the significance of good legal drafting skills. All in all, the Victorian Court of Appeal has set a precedent for ignoring the subjective intentions of parties to a contract in favour of an objective analysis of the contract itself.

Contact Us

If you’re thinking of entering into a contractual arrangement as a guarantor, seek legal advice in advance.  Uther Webster & Evans can provide you with advice and guidance, so contact our office here.

Disclaimer: the contents of this article are for informational purposes only and do not constitute legal advice, nor are the contents of this article intended to be a substitute for legal advice or to be relied upon as such.