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Guardianship: The Court’s Decision Part 2

Part 1 of Guardianship: The Court’s Decision described the role and the responsibilities of a guardian. With the role being described, you may begin to wonder why a guardian would be appointed. This role is very important and should not be entered into lightly. Though it does come down to the VCAT’s decision, here is what to know about appointing guardianship to a represented person.

 

Reasons to Appoint a Guardian

The resource of a guardian is valuable for health service professionals. It gives them the ability to discharge patients who are older or incapable of decision making. The VCAT with appointing a guardian if the represented person:

  • Has a disability that affects a person’s ability to make a decision
  • Cannot make personal and lifestyle decisions in a reasonable manner
  • Needs a decision made for them and there is not an alternative, less restrictive method that helps in making a decision
  • Needs someone who will act in their best interests

The VCAT will typically choose a relative or close friend of a represented person to be their guardian. The main qualification the VCAT is looking for is that the guardian will act in the best interest of the represented person. The family members of the represented person can express their wishes to the VCAT of who they would like to be the best person appointed as a guardian. If there are no suitable or willing people to take on the role of a guardian, the Public Advocate will be appointed as guardian. This would be a last resort and the Public Advocate would be able to delegate the role to either an Advocate Guardian from the OPA or to a Community Guardian.

 

A guardian role is completely voluntary. If the guardian becomes unable or unwilling to continue as a guardian, they may resign the position. The guardian must inform the VCAT, in writing, that they no longer want the responsibility of a guardian. The VCAT can then hold another hearing to determine if the represented person still needs a guardian and if they need to appoint a new one.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

Guardianship: The Court’s Decision Part 1

If a person hasn’t acquired a power of attorney for themselves and ends up becoming disabled, they may need someone to safeguard their interests. The Victorian Civil and Administrative Tribunal can appoint a guardian to make the decisions on behalf of the person with disabilities. The decisions made by a guardian are meant to make a positive difference in a person’s life. Guardianship could also be a possibility if there are different views on a decision that cannot be resolved about the person’s best interest. The Guardian is there to step in and help resolve any decisions that need to be made.

 

Roles and Responsibilities

The power of the guardian depends on the Victorian Civil and Administrative Tribunal. They can either name a limited order or a plenary order. A limited order will specify the type of personal and lifestyle decisions. This can include:

  • Accommodations such as the type of housing, where it is located, or who the person will be living with
  • Employment
  • Access to services
  • Restrictions on particular people having contact with the represented person

A plenary order has the ability to make personal and lifestyle decisions as well. It also includes being responsible for making medical decisions on the person’s behalf. Neither of these guardianship types can make financial decisions for the person with a decision-making disability. As a guardian, you have responsibilities such as:

  • Acting as an advocate
  • Acting in the best interests
  • Making decisions that are least restrictive of the person you are representing
  • Taking into account the person’s wishes and make whichever wishes possible and make them into decisions
  • Encouraging the person to stay active in their community
  • Encouraging the person to make as many decisions as possible and act for themselves
  • Protecting the person from abuse, exploitation, or neglect.

The VCAT holds guardians accountable for the decisions they make on behalf of the person with a decision-making disability. The guardian can go to the VCAT or the Office of the Public Advocate for any support or advice during their time as a guardian. The VCAT also has the ability to re-assess an order. If a guardian is not doing their role and taking on their responsibilities, the VCAT can revoke their previous order.

 

The VCAT can appoint two or more people as joint guardian. If this is the case, both or all guardians must agree when making decisions on the represented persons’ behalf. If they can’t agree, the decision will not be considered valid. Part 2 of Guardianship: The Court’s Decision will describe the reasons why someone needs to be appointed a guardian.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

More Tips About Buying a Business

In my last article, I gave three tips about buying a business. Though research, buying assets, and hiring a professional are very important tips, there are more. Sales and payroll taxes, prepaid expenses, and letter of intent are some more aspects to focus on when buying a business.

 

Sales and Payroll Taxes

Asking about sales taxes and payroll taxes before buying a business can save you troubles in the future. Even if you buy a business’s assets, the state tax authority may have the ability to hold you liable if the previous owner owed sales, use, payroll, or any other business taxes. If the previous owner has other employees, you should ask if they were using a payroll service. This will give you the ability to confirm they are currently in employment tax payments. Once you get the current records, have the state tax authority issue a clearance letter proving the previous owner is up-to-date with the sales taxes by the closing date of the deal. This may extend the buying process but it will safeguard you down the road if anything happens with previous tax statements.

 

Prepaid Expenses

Expenses that the business has paid for upfront, might not be added to the purchase price. The previous owner may want to be reimbursed for the portion of the year that you will be running the business and benefiting from those prepaid expenses. These expenses can be added on at the time of closing the agreement. Ask for a seller for a list of closing adjustments which include the previous owner’s prepaid expenses. This will give you the opportunity to budget correctly and won’t be surprised at the closing of the deal. You can be prepared with all the information and it could mean you no longer want to purchase the business.

 

Letter of Intent

The letter of intent is an agreement between the buyer and the seller of the business. This agreement will lay out the important terms and conditions of the sale of the business. It typically includes the purchase price, how the business will be paid for, when the business deal will be paid for, the assets that are included with the business, the seller’s non compete agreement, and much more. Though the letter of intent is not legally binding, it is worth the time to discover any issues before lawyers begin drafting legal contracts that will make the sale a binding agreement. A letter of intent is meant to negotiate any terms and condition before legal documents are drafted and have to be redrafted. This can save the costs of legal fees.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

 

Advance Care Directives

Though planning for the future is exciting when talking about where you are going to travel next, where you will be at in your career, or how big your family will be by that point. You have to plan ahead, should there come a time when you are unable to make decisions. There could come a time when you experience an injury or an illness that alters the ability to be able to make your own decisions. If you complete an advance care directive, you have the ability to specify what medical treatment decisions you want to be made on your behalf. You can give instructions about future medical treatment that you consent or refuse, as well as, the values and preferences for your medical treatment decision maker to consider when it is their time to make decisions for you.

 

Instructional Directives

Instructional directives are statements of your medical treatment decisions for future procedures and care. By signing an instructional directive, you are either giving consent or refusal medical treatment. Health practitioners need your consent before they can perform any medical procedure or treatment for you. The practitioner, if you are do not have decision-making capacity, will find out whether or not you have an advance care directive and follow the relevant instructional directive you had given. You shouldn’t complete an instructional directive if you do not know the medical treatment that you want to do or not want to do in the future. The practitioner will have to follow your instructions given in the directive.

 

Values Directive

A values directive will state the values and preferences of medical treatment. People have different views on whether or not a quality of life is more important than a person just being alive. People can value a caretaker while others would prefer to take care of themselves. There aren’t any right or wrong answers, what matters is that you make the choices that will best suit you later in life. It also helps to explain them to your loved ones so they have a better understanding of why you are making your decisions.

 

When completing the advance care directives form, you will sign it in front of two witnesses, one who must be a medical practitioner. You must be evaluated as in the proper capacity and sign the form voluntarily. Your directives will end if you complete a new form, cancel the appointment of the directive, the VCAT cancels your appointment, or you pass away. If you do not have a directive, your practitioner will ask your medical treatment decision maker. The decision maker will make your decisions on your behalf.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

 

Are You an Eligible Power of Attorney?

Enduring powers of attorneys have the ability to make decisions about matters in which they were appointed. Whether it is financial or personal, a power of attorney is meant to make the best choice for their principal at all times. Stepping into the role of a power of attorney begins when the principal no longer has the capacity to make their own decisions. But what makes you eligible to be a power of attorney?

 

To become a power of attorney, the person must:

  • Be the age of 18 years or older
  • Not be insolvent: a power of attorney cannot pay its debts when they become due. An example would be someone who is undischarged bankrupt.
  • Not be a caretaker, health provider, or an accommodation provider for the principal

If a power of attorney will be taking care of financial matters, there will be more requirements in addition to the ones listed above. The person cannot be convicted or found guilty of an offense which involved dishonesty. They can still be eligible if found guilty or convicted. In those circumstances, they have disclosed the conviction to the principal and the disclosure is recorded in the enduring power of attorney.

 

A power of attorney can be revoked by signing the appropriate revocation form. The principal must still have the capacity at the time to do so. If anyone believes that the enduring power of attorney is not acting in the best interest of the principal, they can apply to the Victorian Civil and Administrative Tribunal (VCAT). After an investigation, the VCAT may revoke the attorney’s power if it finds that they are in fact not acting in the best interest for the principal.

 

About Glenn Duker:

Glenn Duker has a vast experience as a litigation lawyer. He has served as a consultant to many clients in different areas of the law. His areas of expertise include business and commercial law, employment law, will and testament, probate, and trademark legal matters. Glenn writes about legal issues that arise in many clients lives. Check out GlennDukerLitigationLawyer.com.au for more information!

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

 

Keeping Information Within Your Company

No matter what type of business you are involved in, there is information that must be protected. You wouldn’t want competitors obtaining your client list or schematics of a new product. The business could not gain a competitive edge if all of its information was released. Information can be protected by legal remedies that prevent from misappropriation and unauthorized disclosure of the company’s information. If your business secures a trade secret protection it can benefit the company in the long run. Trade secrets can be difficult to keep confidential over a long period of time and when many people in your company know about it. There are many different methods that can be taken to protect your companies trade secrets but it also depends on the situation.

 

Contractual Protections

If members that are outside of your company have access to your trade secret information, you want to include a condition about confidentiality protections in your business with them. You can customize a non-disclosure agreement that includes some of the following:

  • Acknowledgment that the information given is considered a trade secret,
  • Agree not to share the information with anyone who is unauthorized,
  • The individual could not attempt to reverse engineer the information,
  • And any other protections that may be deemed necessary.

 

Employee Policies

Employees that have access to the company’s trade secrets should be subject to policies that regard the disclosure and security of information. Employees should be clear on protecting the confidential information that is produced within the company. Having employees know what information is considered to be along the lines of confidential is also a very important implementation. Even if the employee does not have access to the information, they are still expected to abide by these rules.

 

Control Over Information

The company should implement controls over the trade secrets to decrease the risk of the information getting released to employees and others who do not have a need-to-know requirement. Keycards and keycode access can help restrict certain areas of the building that are marked as secure locations for documents or materials that are specified as trade secrets. Since technology is always improving, your company most likely has electronic files of your trade secrets. To ensure safety, make sure your company’s data is secured and that only certain individuals have access to the information or codes.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

Three Tips for Buying a Business

You want to change career paths or take on a new level of responsibility, so you decide you are going to buy a business. It should not be an easy decision since there is an immense amount of work that goes into the process. It is hard to narrow down tips for buying a business since there is much that goes into an agreement. These three tips are some of the essentials when you consider buying a business.

 

Research

Buying a business is a tremendous endeavor. Not only is the purchase of the business itself a huge commitment but so is the process beforehand. You do not want to make this decision without doing your due diligence. Take the time to figure out what you are interested in, determine if the business model has the chance of being successful, determine any risks, discuss why the business is for sale, and make sure it aligns with your budgets. There is a lot of research to be done to make sure that purchasing a business is the right move to make.

 

Buy Assets

It sounds strange to say buy the assets and not the business. You will receive a better tax treatment since your taxes will be based on what you paid for them and not what the seller paid for. Another advantage is you do not assume any liabilities of the previous owner. There will, however, be liabilities included in the acquisition agreement. These liabilities include product liability, environmental liability, liability under bulk sales, and employee benefits. Every contractual agreement is different and should be negotiated with the help of counsel.

 

Hire a Professional

Hiring a business lawyer and an accountant will help you with the numbers and the paperwork. Accounts help to determine the assets, liabilities, and what possible earnings could be. A lawyer will help draft, proofread, and negotiate contracts during the purchase of a business. Having successful professionals can make purchasing a business a smoother process. Creating a successful beginning may create an easier life of your business. You will have a clearer picture before closing the deal.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

 

What is Succession?

Succession isn’t just the creating and signing of a will. Succession law redistributes the property of a deceased estate upon the death of its owner to the beneficiaries entitled, either in the will or by the law. Succession is concerned with the deceased person’s property whether there was a will or not. Lawyers who are involved in estate planning will guide their clients through the estate planning process. Lawyers will discuss the details of your succession plan before drafting the will. This creates an easier process of drafting the will and getting it right the first time.

 

Every situation is different. Some people have homes, cars, businesses, or other assets that some may not have. Along with all the assets are different whether it large or small business or a used or brand new car. Some people may want to exclude family members from their estate while others may want all family members to have an equal share.

 

In terms of succession in businesses, succession planning is in the case of the owner or key member of management ends up leaving the company, is terminated, retires, or dies. This ensures that the business does not have to stop its day to day activities. It will outline the change in leadership that may occur provided that the before mention were to happen. Creating a succession plan could benefit the company by retaining key employees, reducing the tax burned, and maintaining the value of its stocks and assets during the transition of ownership. This also provides the owner with a sense of comfort since leaving won’t burden the company.

 

Although there are many benefits to having a succession plan in place, many do not. An owner may not develop one because they do not want to choose a successor, they don’t have many interests beyond the company, or they do not want to confront their mortality. Succession planning entails details that compares to planning one’s own death which may cause a discomfort.

 

Succession can take many years to plan and the implementation can take longer. Taking the time to create this plan will assure them a way out of the company with enough assets for retirement. The business owner could sell the company to an outsider, family members, retain the ownership and hire new management, or sell to the employees. Owners need to initiate the idea of a succession plan, select details that will be included, educating the successor, and the final transition of the plan.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

 

Why Do Franchises Fail

Before you decide to either join and start a franchise, know the chance of failure is present. Just like any other business, if the right steps are not taken, the concept could fail. Testing and doing your due diligence during the early phases could protect you from the number of factors that lead to failure.

 

The Business Model

The concept of the business has to be approved by the consumers. If the idea is not received well by the consumers, the franchise will then fail. Also if your business model is complicated and not easily replicated, your company will struggle. The operations have to be taught at a standard for any businessperson that wishes to replicate it. Also if your business model is too similar to others already established, the business model is not successful, it is not likely to be a successful franchise.

 

Location

Like many responses to real estate and business, the most important thing is location. You could have a great business model and a service or product that all consumers will want but they can’t find you. You are in an area where their not looking for your product or service. Since there is no opportunity in the location, the franchise will not flourish and the possibility of being successful deteriorates.

 

Marketing

This goes hand and hand with the location, as you could have the best product or service but no one knows about it. If your franchise doesn’t have an established reputation, your consumers will not know to give your business a chance. You have to be knowledgeable about where to spend your advertising efforts. Advertise on a more localized level and niche to reach the right consumer that will bring your company profits. If you do not establish a marketing or advertising plan, your company may fail without anyone knowing it existed.

 

Competition

A major reason franchises fail is competition. With around 79,000 franchises in Australia, it is hard to find an idea that is popular but not tapped out. There are certain sectors of franchising that are rising due to the growth in healthier lifestyles. Following along in what is already successful could lead to your downfall.

 

Expectations

You need to set realistic expectations for yourself and the business. It can take years to see profits and if you are not prepared your franchise could crumble around you. The hard work and effort put into being successful may be a deterring factor when deciding to start a franchise. If the expectations are unrealistic it can lead to failure.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.

 

What to Look For When Hiring a Lawyer

A lawyer is your advocate who should fight on your behalf in a legal situation. They should use reasonable, ethical, and cost-effective means to get you the best possible outcome. You can search online for law firms and private offices or you could take recommendations and read reviews. If you are looking for a lawyer for a legal issue, think of these qualities when researching and meeting with your soon-to-be counselor.

Comfort
If you are not comfortable with your lawyer, you may not feel confident they can do the job. You want to be able to feel comfortable with your lawyer and have an open relationship. This will allow both of you to share relevant information pertaining to your matter. A lawyer won’t be able to fully assist with your matter without knowing all of the information.

Fees
Look for or ask for their rates when hiring a lawyer. You want your lawyer’s fees to be worth taking the case to trial. If it’s a small dispute it, it won’t require expensive representation. Expensive fees do not mean that the representation will necessarily be any better nor does it guarantee you will win your case. Legal fees should be considered on a cost-benefit analysis. Mid-range priced lawyers generally offer the best value and you will be getting solid experience with a firm that has strong capability without paying the corporate price.

Their Track Record
Search your possible counsel’s name on the Internet before you meet with them. Check the firm’s Google reviews. Also, ask the lawyer about his or her experience and that of the team. You are entitled to know whether they can do the job. This is because not all lawyers are good lawyers.

Communication
You want to know your lawyer will be with you every step of the way during the trial process. Even if you have a random question or concern in the middle of the night and need counsel, you want a lawyer who will respond swiftly. After your initial meeting, save some questions and send over an email with your concerns. If it takes them days to respond, they may be too busy to be handling your case.

Negotiation
Ensure that your lawyer is a good negotiator. Many are very combative when they should conciliatory where appropriate. A lawyer’s goal is to get the job done, having regard to the client’s goals.

When choosing a lawyer, you want to find the best fit for you. You need someone who is competent and aware of your needs, not only your cases needs. Find someone who you are comfortable with and successful to help with making a difficult time in your life a little bit easier.

 

**This article is for informational purposes only and is not intended to be legal advice. In relation to your individual situation, always seek advice specific to your circumstances from a lawyer.