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Worrall Moss Martin News

Issue 28,  March 2021

Tasmania becomes the third Australian State to legalise
Voluntary Assisted Dying

The End-of-Life Choices (Voluntary Assisted Dying) Bill 2020 (“the VAD Legislation”) was passed by the Upper House of the Tasmanian parliament late on 23 March 2021, making Tasmania the third jurisdiction in Australia to introduce a framework to legalise voluntary assisted dying, after Victoria and Western Australia.  

Although we reported on a prior version of the VAD Legislation after it passed the Lower House (see Issue 24 of Worrall Moss Martin News), it is a useful time to revisit some important questions, and look at the terms of the VAD Legislation in its final form.

What is Voluntary Assisted Dying?   

Voluntary assisted dying (“VAD”) describes the process by which a person can choose to lawfully end their life with the assistance of a doctor.   A key objective of the VAD Legislation is to provide eligible people with an efficient process and effective pathway to enable them to choose to end their suffering with assistance, without that assistance being an unlawful act.

Is Voluntary Assisted Dying Legal in Tasmania?

Now that the VAD Legislation has been passed by both houses of Parliament, the next step is for the VAD Legislation to receive Royal Assent.   This is the formal process by which the VAD Legislation will become an Act of Parliament.

When Can People Can Access VAD?

Not for some time.   There is an 18 month implementation period, during which the Voluntary Assisted Dying Commission (“the VAD Commission”), a government authority established by the VAD Legislation, will be set up and become operational.   The VAD Commission will oversee the legal administration of VAD, and will work out the finer details of how the VAD Legislation will be implemented.

A key responsibility of the VAD Commission is to develop the training that medical professionals will need to complete before they can help someone access VAD.   The implementation period takes into account the time that it will take to build the workforce to support the VAD Commission, and develop the training and other policies needed by VAD Commission employees and medical practitioners.

Who Is Eligible to Access VAD Under the VAD Legislation?

To be eligible to access VAD, a person must:
  • have attained the age of 18;
     
  • meet one of the following residency criteria:
     
    • be an Australian citizen;
       
    • be a permanent resident of Australia;
       
    • have been resident in Australia for at least 3 continuous years immediately prior to seeking to access VAD; or
       
    • have been ordinarily resident in Tasmania for at least 12 continuous months immediately prior to seeking to access VAD;
       
  • have decision-making capacity, and retain decision-making capacity throughout the voluntary assisted dying process; 
     
  • be acting voluntarily; and
     
  • be suffering “intolerably” from a “relevant medical condition”.
A “relevant medical condition” is a condition that is “advanced, incurable and irreversible”, and is expected to cause the death of the person within 6 months, or within 12 months if the disease is neurodegenerative (although a person may be exempted from the 6 or 12 month requirements in certain circumstances).

Whether a person is suffering “intolerably” is a subjective assessment based on certain criteria set out in the VAD Legislation. 

How Can Someone Access VAD?

Under the VAD Legislation, the first step is for a person to seek information about VAD from a medical practitioner.   The medical practitioner is required to provide information about the treatment options available to the person, including palliative care options, and the likely outcome of the care and treatments available.   Once a person has received information about their options, the following steps must be followed:
  • First Request – a request to access VAD is made to a medical practitioner.   If the first request is accepted, the medical practitioner becomes the person’s primary medical practitioner (PMP); 
     
  • Second Request – provided the first request is accepted and the person is deemed to be eligible by the PMP, a second request can be made to the PMP.   Except in special circumstances, this request must come more than 2 days after the first request; 
     
  • Second Opinion – after accepting the second request, the PMP must refer the person to another medical practitioner for a second opinion about whether the person is eligible for VAD.   If the referral is accepted, that medical practitioner becomes the person’s consulting medical practitioner (CMP);
     
  • Third Request – if the CMP confirms that the person meets the eligibility criteria, the person can make a third and final request to the PMP.   Except in special circumstances, this request must come more than 2 days after the second request;
     
  • Appointment of AHP – the PMP must either agree to be appointed as the administering health practitioner (AHP) or can request that another practitioner be appointed;
     
  • VAD Substance Authorisation – the VAD Commission issues a VAD Substance Authorisation to the PMP on request of the PMP;
     
  • Final Assessment – the AHP must perform a final assessment to ensure the person has decision making capacity and is acting voluntarily.   Provided the AHP is satisfied, they must provide advice to the person that they are entitled to receive assistance to die, and explain how the medication can be administered; and
     
  • Final Permission – the person may self-administer the substance.   If they wish for the AHP to administer the substance, they must give final permission to the AHP to do so.
A person can withdraw from the voluntary assisted dying process at any time.

Can Someone with a Disability or Mental Illness Access Voluntary Assisted Dying?

Under the VAD Legislation, people suffering from a disability or mental illness will be able to access VAD, provided they meet the eligibility criteria.   The person seeking access to VAD must have decision-making capacity, and must be able to communicate their decision.   Suffering from a disability or mental illness does not, in itself, make a person eligible to access VAD.   Their condition must meet the requirements of a “relevant medical condition”, as defined above.

Can a Family Member, Attorney or Guardian Request VAD on My Behalf?

No, the VAD Legislation requires that requests must be made by the person seeking to access VAD. If a person requires an interpreter or other assistance to communicate, a third person may assist to communicate on that person’s behalf.   However, the VAD Legislation specially provides that the third person must not be a family member.

Can I Request Voluntary Assisted Dying in My Advance Care Directive?

The purpose of an advance care directive is to record a person’s wishes about their medical care, so that those wishes can be respected if that person later loses decision-making capacity.
Because the VAD Legislation requires that the person accessing VAD must have decision-making capacity throughout the entire process, a person cannot request VAD in an advanced care directive.

Is It Compulsory for Doctors and Health Professionals to Participate in VAD?

No, the VAD Legislation allows medical practitioners to refuse requests for VAD.  This includes where the medical practitioner’s reason for refusing to provide treatment are based on their personal beliefs or moral concerns about VAD.   There is no requirement for reasons to be provided.   If a medical practitioner refuses a person’s request for VAD, they are obliged to provide that person with information about VAD, including the contact details of the VAD Commission.   The VAD Commission is required to maintain a list of medical practitioners who have completed the approved VAD training.

What are the Current Consequences of Assisting a Person to Take Their Own Life? 

In Issue 16 of WMM News we discussed the current criminal and civil consequences of assisting a person to take their own life (including how it can impact a person’s claim or entitlement to the deceased person’s estate).   

Once the VAD legislation becomes operational, provided the established process has been followed, it is likely that the forfeiture provisions (where a person entitlement under a Will, or intestacy, is lost) will not apply.   However, this can be a complex and uncertain area of law, so care should be taken to ensure a family member doesn’t unintentionally activate the forfeiture provisions.

How Can We Help?

Understandably, this is a very emotional topic, and there are often conflicting views about VAD in the broader community.   If you have any questions about the new VAD laws, or would like advice about your rights or your role as an Attorney, Guardian or support person for someone who may or may not be eligible to access VAD, please contact Eve HickeyKimberley MartinKate Moss or Robert Meredith.
I trust you, so let’s just ‘shake on it’
Neither a borrower nor a lender be, for loan oft loses both itself and friend, 
and borrowing dulls the edge of husbandry.” – William Shakespeare

Notwithstanding Shakespeare’s sage advice, we frequently meet with clients who are intending to loan or gift money to their family members or friends, or who have already done so.

Because we trust them, many of us have no difficulty in making loans, or gifts, to our loved ones.   But even though these relationships are built on trust, there is significant risk in accepting a mere “handshake” agreement, instead of properly documenting each parties’ intentions in relation to the loan or the gift.   Undocumented agreements often lead to difficult legal issues, and can cause irreparable damage to the relationship between family members.

Recollections about the specific terms of the promises, obligations and responsibilities arising from verbal agreements can vary wildly, so formally documenting the terms of an agreement to loan money is important to avoid any future misunderstanding about repayments and other matters.

Similarly, although a gift may seem like a one-sided arrangement, they can give rise to potential tax consequences.  They are also important in the context of estate planning considerations, particularly where the gift is to a potential beneficiary of the giftor’s estate (as discussed in Issue 20).

What Are the Options for Recording a Loan or Gift?   

There are three main types of documents for recording gifts or loans between family members and friends:
  • a secured loan agreement;
     
  • an unsecured loan agreement; or
     
  • a deed of gift.
What Option is Right for your Circumstances?   

Which option is right for the parties depends upon each of their specific circumstances.   In making a decision about whether to gift or loan money, there are important considerations about the receiver’s risks of:
  • bankruptcy;
     
  • matrimonial or relationship disputes; and
     
  • other litigation risks,
as well as whether the receiver has existing loan obligations with a bank or other financial institution.
 
The person providing the funds must also consider the degree of asset protection they will personally require, as well as their overall retirement and estate planning strategies, which may include a need to maintain access to a means-tested social security payment.

Option 1 - Secured Loan   

A secured loan is a loan guaranteed by an asset.   The lender uses this asset as security, which means that if the borrower does not make the agreed repayments, the lender can take possession of the asset and sell it to cover the repayment of the loan.  

Some key points of advice we often share with clients when discussing secured loans include:
  • Where the money is a loan, we recommend that, regardless of the closeness of the relationship between the parties, some form of security is provided by the borrower.   This protects the lender’s interests, as well as providing a level of protection for the borrower, if the borrower becomes bankrupt, party to a matrimonial/de-facto property dispute, or simply fails to repay the loan.   If security is not provided by the borrower, the lender may be unable to recover any of the outstanding funds.
     
  • It is important that the lender and the borrower have frank and open discussions about their expectations.   The terms of a secured loan agreement can be drafted to suit the parties’ requirements.   Where the parties are in a close relationship, the loan can be documented on much more generous terms than a loan the borrower could otherwise receive from a bank.   This way, both parties can receive a benefit from the arrangements.
     
  • In terms of the types of security that can be provided, a loan can be secured by a mortgage over real estate (the strongest security), a caveat over real estate, a “PPSR registration” (which is a form of security over the borrower’s personal assets), or a combination of the three.   Alternatively, instead of giving rise to an immediate security, the agreement can provide the lender with the ability to take out a form of security at a later date, if the need arises.
     
  • Difficulties arise where the loan is not the borrower’s only line of credit.   This often arises where the borrower is obtaining funds from family and friends in addition to taking out a loan from a bank, with the bank registering a mortgage over the borrower’s property.   This limits the form of security the family lender can take out, because the terms of the loan arrangements that the borrower has with their bank will often prohibit any further security over the borrower’s property.   Failure to keep the bank informed of other loans can result in the borrower defaulting on their arrangements with the bank.   
Option 2 - Unsecured Loan

An unsecured loan is a loan that is not secured by an asset.   This means that the borrower does not have to provide any security for the loan, and the lender does not have any priority in recovery and must line up with other creditors to attempt to recover the outstanding amount of the loan.   

Some key points of advice we often share with clients when discussing unsecured loans include:
  • It is common for family or friends to lend money on an unsecured basis.   However, as set out above, without properly documenting the terms of the loan, there is no written agreement setting out the mutual understanding of the parties at the time the money is lent.   Disharmony, and a breakdown of relationships, can easily arise if the parties’ understanding of the arrangements do not coincide.
  • An unsecured loan agreement does not offer a lender the same level of protection as a secured loan agreement, because the lender has more limited means to recover the money lent if the borrower has defaulted, particularly where there are competing debtors (for example a bank).   Where there are competing debts, for example in a bankruptcy, unsecured debts rank lower in “priority”, meaning that they will not be paid until after all secured debts have been satisfied.   If there is a dispute about repayment, the lender may need to initiate court proceedings to enforce the debt.
  • Because of the involvement of third party secured lenders, it may not be possible to enter into a secured agreement.   Many banking arrangements prohibit a borrower from offering multiple mortgages or securities over the same property.
  • An unsecured loan agreement still provides the lender with asset protection, and sets out clearly and precisely the terms of the loan.   This is of great assistance to a lender both during their life, and after their death, as documenting the terms of the loan make it easier for the lender, or their estate, to recover the funds (or take them into account when dividing the lender’s estate).
Option 3 – Gift   

A gift is the voluntary and immediate transfer of cash or other assets from one person (the giftor) to another (the giftee) without consideration, and with no obligation for repayment.  
Some key points of advice we often share with clients when discussing gifts include:
  • Where money (or other property) is intended as a gift, it is still vital to document the terms of that gift.   If the gift will give rise to tax liabilities, then it is important to consider – and document – who will be responsible for paying those taxes.
     
  • If a gift has ‘strings attached’ documenting the arrangement is an important step in ensuring that the conditions are complied with, or alternatively, whether the gift ‘fails’ (and must be returned) if those conditions are not met.
  • Even where a gift is completely unconditional, there are still issues that can arise, and lead to family disputes, if the gift is not properly documented.   Often, a parent will make a gift to one of their children, with the intention of making ‘equalising’ gifts to their other children during their life, but dies before making all of the intended gifts.   It is important that gifts are taken into consideration in preparing the parent’s estate plan, so that the children are not ultimately treated unequally (unless that is the parent’s intention).
How Can We Help?  

When money or property is changing hands between friends and family, it is vital to obtain proper advice about what type of documented arrangement will best suit the parties’ circumstances and requirements.   This includes not only ascertaining and recording the specific terms of that arrangement, but may also extend to guidance about the lender or gift giver’s retirement and estate planning, including relevant social security considerations, to ensure that you are prepared for all contingencies and eventualities.

Worrall Moss Martin Lawyers has specialist skills and experience in estate planning, commercial and property law, and can help you with any enquiries.   Please contact Kimberley MartinDavid Bailey or Leanne Rama if you, or your client, need expert advice and assistance to preparing a loan agreement or deed of gift to formally document that ‘handshake’ agreement.   Additionally, please contact Kimberley MartinCasey Goodman or Ashleigh Furminger to assist you, or your client, to prepare a comprehensive estate plan that takes into account, and properly adjusts for, advancements made during life.

 
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