Worrall Moss Martin News

Issue 21,  July 2020
I think I'm an Organ Donor... Isn't it on my Licence?
The rate and incidence of organ and tissue donation in Australia has been slowly rising since Australia began reporting to the International Registry of Organ Donation and Transplantation in 1995.   In 2019, Australia was ranked 15th in the world (by population) for organ and tissue donation.

Although this indicates that an increasing number of people are choosing to donate either the whole, or part, of their body after they die, in 2019 the actual number of deceased donors was a mere 548, with only 511 of those donors’ organs or tissue actually utilised in transplants.

What is Meant by “Donation”?   Organ donation involves removing organs (or tissue) from someone who has died, and transplanting them into an ill or injured person in need of “healthy” organs (or tissue).

It is also possible to ‘donate your body to science’, by entering a university body bequest program.   Many universities across Australia conduct body bequest programs to aid research of the human anatomy.   The University of Tasmania Body Bequest Program uses donated bodies for teaching human anatomy to medical and allied health students, and for training surgeons in new techniques and procedures.   Ordinarily, once your body has been utilised, it will be cremated and your ashes returned to your family.

Who Can Become a Donor?   There are no restrictions on who can become a donor, indeed for the donation of certain organs or tissue, even death is not a prerequisite.   There are some medical conditions that may exclude donation of bodies to a body bequest program.   There are also some medical conditions that may exclude donation of certain organs or tissue for transplantation, and persons who lived in the United Kingdom for at least six consecutive months between 1980 and 1996 cannot donate blood or tissue due to the risk of transmitting Creutzdfeldt-Jakob disease (although these persons are permitted to donate their organs).

“Registering” as a Donor:   Although each State and Territory has its own similar legislation governing the process of organ and tissue donation (in Tasmania, this is the Human Tissue Act 1985), in 2008 the Commonwealth Government established a national register for recording consent to organ and tissue donation after death.   The Organ and Tissue Authority maintains the Australian Organ Donor Register, which has now replaced the State and Territory based registers (previously maintained by the State and Territory Driver Licence registries).   In most States and Territories, donation decisions are no longer recorded on Driver Licences.

Any person can join the Australian Organ Donor Register (either online, or by printed form), and at any time and for any reason, revise or revoke their registration.   Entering a body into a body bequest program depends on the particular university, and will usually involve completing a detailed registration form.

“Registration” Versus “Utilisation”:   Joining the Australian Organ Donor Register, and organ and tissue donation generally in Australia, is an “opt-in” program.   It requires not only the consent of the donor but, where the donor has died, the consent of the donor’s family to the organ or tissue removal, otherwise the donation will not go ahead.   Donation may not occur if a family strongly objects to the process, and current statistics indicate that the national consent rate of families agreeing to donation is only 62%, although this increases dramatically where the family is aware of the deceased’s consent to donation.

Body bequest programs will similarly ask for a family’s confirmation and, if the family is unaware or unhappy about the bequest, a university may be unable to accept the donation. 

This underscores the importance of discussing donation decisions with family members, and providing clear directions about consent to donate.   Grieving family members who are uncomfortable with the concept or process of donation are far less likely to allow it to proceed.

Donation and Estate Planning:   There are other steps that can be taken to ensure, as far as is possible, that wishes about donation are carried out.   In addition to family discussions, wishes about donation during life can be included in an Instrument Appointing an Enduring Guardian, and Enduring Power of Attorney.  Wishes about donation after death can be included in a Will, and further detailed and explained in a Memorandum of Wishes.   These documents assist in reinforcing decisions about donation, at what may be a time of grief, confusion and sadness.

How Can We Help?   Worrall Moss Martin Lawyers has specialist skills and experience in estate planning, and can help you to with any enquiries, including preparing your estate planning documents to reflect your donation decisions.   

Please contact our Estate Planning & Trusts lawyers (Peter Worrall, Kimberley Martin, Casey Goodman or Ashleigh Furminger) if you, or your client, need expert advice and guidance about preparing a comprehensive estate plan.   

Please contact our Estate Administration lawyers (Kate Moss, Thomas Slatyer and Megan Bird) if you, or your client, need advice and guidance about organ donation or body bequests of a family member who has died or is dying.
Failing to Plan is Planning to Fail:  Business Succession Planning
Thinking about our own mortality and handing over control of a business to a successor or purchaser is something that can cause anxiety, but it cannot be avoided.   This is not a matter of “if” – it is a matter of “when” and “how”.

To maximise the chance of a successful transition, business succession planning should not wait until the business owner (or controller) plans to exit, or an “event” like disability (including loss of mental capacity) or death occurs.   Additionally, the earlier the process is started, the more options may be available.   Early succession planning can incorporate tax minimisation strategies, asset protection mechanisms, and the opportunity to preserve the value and integrity of the business, positioning it for future success, whilst being flexible enough to weather the contingencies of life and commerce.

Although each business is unique, and no single approach to succession planning works for everyone, the following can be used as a guide to facilitate the process.

Seek Advice From a Team of Advisors:   One advisor alone cannot always successfully develop and implement an appropriate succession plan.   Business succession planning at its best involves a team that includes an estate planning lawyer, an accountant, and a financial planner.

Open Lines of Communication:   The business owner (or controller) must start a discussion with their successor/s, as well as any business partners, as early as possible.

Generate Options:   The team of advisors should be utilised to assist the business owner (or controller) and their successor/s to generate options for succession.   These options must take into account and address: the different “what if” scenarios; the different methods of transferring ownership of all or part of the business; the different tax and duty concessions and exemptions that may be available; and comprehensive estate planning.

Make Preliminary Decisions:   After assessing each of the options, the business owner (or controller) and their successor/s need to make preliminary decisions about the most suitable options. It is vital that the team of advisors provide input, comments and suggestions regarding the various options and decisions, and recommend timeframes for taking action.

Design, Develop, Write and Review:  Once the business owner (or controller) and their successor/s have made preliminary decisions, the next step is to prepare a draft written succession plan.  Key documents that should be considered include: an operational guide to the running of the business; a buy/sell agreement; a partnership agreement; a shareholder agreement; a bespoke constitution; and comprehensive estate planning documents.

Implement and Monitor:   Once a plan has been developed, it must be implemented, and its progress monitored.   The plan should be reviewed at least every few years, and more frequently if there are personnel changes, industry transitions and changing market conditions.

It is impossible to predict with certainty what “will” happen by way of business succession, but with the right preparation, the risks and adverse consequences of the unexpected can be better mitigated.   It may not be easy to take positive steps toward successful business succession, but with the right support, it is something that can be done. 

How Can We Help?   Worrall Moss Martin Lawyers has specialist skills and experience in business succession planning.  Please contact our Commercial and Estate Planning lawyers (Peter Worrall, Kimberley Martin, or David Bailey) if you, or your client, need expert advice and guidance about preparing a comprehensive business succession plan.
Worrall Moss Martin Lawyers is pleased to announce the promotion of Casey Goodman to Senior Associate Lawyer, and Eve Hickey to Associate Lawyer.

Casey and Eve's promotions recognise their strong contribution to our firm, and in particular, their excellent legal knowledge, skill and competence, delivering specialised legal advice to our clients.

Casey Goodman is an experienced estate planning lawyer, displaying great strength in drafting complex advice and legal documents on behalf of our clients.  She is experienced in all aspects of estate planning, including Wills, Enduring Powers of Attorney, Instruments Appointing Enduring Guardians, trust law, tax law, and superannuation law.

Eve Hickey practises in estate litigation, and contentious estate administration matters, and applies her legal skills to providing strategic advice and solutions to complex legal problems for our clients.   She is experienced in negotiations and Court related matters.
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This newsletter contains material for general educational purposes and is not designed to be advice to any particular person about their own affairs as it does not take into account the circumstances of the reader as an individual.  It is recommended that appropriate professional advice be obtained by each reader so that reliance can be taken upon that advice.

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