Newsletter August 2020

You don’t have to cast your mind back far to think of horrific cases in the media about abuse of people with disabilities. An obvious recent case is that of Ann Marie Smith.

As I write these words from a position of comfort my mind goes to what Ms Smith’s life may have been like, not just in her last hours, days or weeks but for the months and years that went before.

I keep circling back to ask how this could happen?

News stories report Ms Smith lived a life of relative privilege but the conditions leading up to and likely resulting in her death don’t reflect a privileged lifestyle. We often think that if we had more money our loved ones with disability will be secure after our death. Ms Smith’s tragic death demonstrates that is not the case. Something more is needed.

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People with disabilities in prison at higher risk of COVID-19

What is a disability?

Firstly, it is important to understand what a ‘disability’ is. The United Nations Convention on the Rights of Persons with a Disability recognises that a disability may result from the interaction between long-term impairments which, in interacting with barriers in everyday lives, prevent that person from participating in the community on the same basis as everyone.

A disability can be visible or hidden, temporary or permanent and may have a minimal or substantial impact on a person’s abilities.

Are people with disabilities involved in the criminal justice system?

Yes, people with disabilities can be, and are, involved in the criminal justice system. The Law Council of Australia’s Justice Project found that people with a disability have high levels of interaction with the criminal justice system as victims, offenders and prisoners.

Numerous studies have found that people with disabilities are over-represented in the Australian prison population. Human Rights Watch have reported that, although people with disabilities comprised around 18 per cent of the Australian population, they constitute almost 50% of Australia’s prison population. In their 2017 report, the NSW Mental Health Commission stated that 50 per cent of adult prisoners had been diagnosed with or treated for a mental health condition. Additionally, the commission found that 87 per cent of young people in custody have a past or present psychological impairment.

The over-representation of people with disabilities in Queensland corrective facilities is equally harrowing. The prevalence of intellectual disability in the general Australian population is approximately 1 – 2%. According to a 2002 survey conducted by Queensland Corrective Services, people with an intellectual disability made up approximately 10% of the prison population. This means that people with an intellectual disability are imprisoned at five times the rate of people without an intellectual disability.

How are prisons affected by COVID-19?

Social distancing is the primary strategy that the Australian Government has advocated to prevent the spread of COVID-19.

COVID-19 spreads mainly among people who are in close contact (within about 6 feet) for a prolonged period. Spread happens when an infected person coughs, sneezes, or talks, and droplets from their mouth or nose are launched into the air and land in the mouths or noses of people nearby. The droplets can also be inhaled into the lungs.

However, social distancing is not possible in Australian prisons. The design of Australian prisons means that people are almost always in close proximity with one another. This problem is further exacerbated by the fact that many Australian prisons are overcrowded, often unhygienic, and prisoners have limited access to health care.

The risk of COVID-19 spreading extends to the broader community, as people churn through the prison system on a daily basis. Many people come and go from prisons including prison staff, contractors, health professionals and educators. As a result, there is ample opportunity for COVID-19 to enter a prison, and for it to go back out into the community. 

The unhygienic and close-proximity qualities of prison make the transmission of COVID-19 extremely easy. Once one prisoner or official is infected, COVID-19 will spread through the centre like wildfire, hopping form one person to another.

What should the government do about this?

State governments must take urgent steps to reduce the number of people in the prisons and stem the tide of those coming into the legal system as part of their response to this unprecedented public health emergency. Governments must employ coordinated and structured release as soon as possible – before infections in prison occur – to safeguard everyone.

No Estate Plan is an Estate Plan

Benjamin Franklin said that nothing in this world is certain but death and taxes. Considering the certainty of death, it is no surprise that many people have a desire to leave a lasting legacy on this world, and for many, this legacy takes the form of their surviving loved ones.  It is surprising though, to find out that 52% of Australians do not have a valid Will in place[1]. So, what happens if you die without having made a Will?

If you die without having made a Will then your assets will be distributed according to a set of laws written by the state known as ‘the rules of intestacy’. Under the rules, the first $150 000 of your estate goes to your spouse. If there is anything left over, then the remaining assets are distributed between your spouse (in addition to the $150 000) and your children (if any). If you have no surviving spouse or child, then the whole estate would go to your parents, and if no parents then to your siblings, if no siblings then to your grandparents, and if no grandparents then to your aunts and uncles. If you have no surviving family then everything would to the government (the certainty of taxes).

For some, the rules of intestacy don’t sound too bad, but these rules can lead to some unfortunate outcomes. Say the assets of your estate are less than $150,000. After your death, it would all pass to your spouse leaving nothing behind for your children. Without a Will, your assets could pass to a parent or family member who’s never been involved in your life. Not having a plan in place can often lead to disputes between family members and this is not the legacy you want to leave behind.

The importance of a Will goes beyond your assets. A Will can help protect your kids. In the event both you and your spouse passed away without appointing a guardian under a Will, then whoever you wanted to look after your children may have to undergo an expensive and lengthy application process with the Family Court to become a legally recognised guardian.

If these aren’t reason enough, consider that it may actually be cheaper to have a Will than to not.  In Queensland, not all Wills require probate.  However, for every estate without a Will, an application has to be made to the Supreme Court and this includes a filing fee and usually involves solicitor’s fees.  Therefore, in some cases it can be cheaper to do a Will.  In any event, having a Will can mean much less paperwork for those you leave behind.

If you are one of 52% of Australians that don’t have a Will, chances are that you would like to get one, but like many things in life, you just haven’t got around to doing it. Understandable considering that no one wants to devote their lives to planning to for their death, but not having an estate plan can be a disaster, not for those departing but for the loved they leave behind. Whilst death may be a certainty, one that thing most certainly isn’t, is the timing of it.

Xannel Mangahas

Estate Planning may be more complicated than you think

Estate Plans

Estate planning is an umbrella term that covers the strategy that a person has made to deal with their assets for when they pass away. Importantly, estate planning is not limited to planning how your assets are distributed after a person passes away, it can also include the plans that a person has made about how they are taken care of, or who gets to make decisions on their behalf, for when they lose capacity.  

Wills

It’s surprising to find out that 52% of Australians do not have a valid Will in place[1]. While there are laws that dictate how your assets will be distributed if you do not have a will (the rules of intestacy), this may lead to your assets being distributed in a way that did not reflect your intentions. As such, it is important to create a will.

Power of Attorney and Guardianship

A normal Power of Attorney allows a person or an organisation to make decisions of your behalf or act in your stead. The range of matters that the person nominated in the document can be specified. One limitation of a normal Power of Attorney is that it ceases to operate (the person loses their authority) when the nominator loses capacity.

An Enduring Power of Attorney is similar to a normal Power of Attorney, but it enables a nominate person to act on behalf of the nominator when they lose capacity.

A Guardian is a person that the Queensland Civil and Administrative Tribunal has appoint to help an adult with impaired decision-making capacity. A guardian ensures that the adult’s needs are met, and their interests are protected by being provided the authority to make lifestyle or health decisions on behalf of the adult. Advanced Health Care Directives

An Advanced Health Care Directiveallows you to express your wishes about the medical treatment you receive and how you would like your body to be dealt with in the event that you are unable to express these wishes yourself. Superannuation

Your Superannuation it is not an asset of your estate, and as such, will not included in your Will. Your superannuation will be distributed as a superannuation death benefit. Nominating a beneficiary can help you ensure that your death benefit (which includes your super account balance and any insurance benefits payable) are passed on to your loved ones. Trust Structures

A Testamentary Trust is a trust that is created according to your Will and may have several advantages. Testamentary Trusts are particularly useful if you would like your monetary assets to be distributed to your beneficiaries in a structured manner and for specific things as opposed to being given to a beneficiary as one lump sum. Is your Estate Plan up to date?

Like most plans, your estate plan estate plan may only reflect your interests at one given time. Your circumstances will change, and it will be important to put plans in place to periodically review your estate plan so that they truly reflect your wishes.

Estate planning can be complex. Additionally, talking about things for when you pass is equally difficult. If you want to discuss your estate plan, call DLQ today to arrange an appointment.