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How to choose a legal decision-maker as you get older – 3 things to consider

<p><em><a href="https://theconversation.com/profiles/joseph-ibrahim-252671">Joseph Ibrahim</a>, <a href="https://theconversation.com/institutions/monash-university-1065">Monash University</a> and <a href="https://theconversation.com/profiles/amelia-grossi-1280226">Amelia Grossi</a>, <a href="https://theconversation.com/institutions/monash-university-1065">Monash University</a></em></p> <p>“It’s my life and I’ll do what I want,” <a href="https://www.youtube.com/watch?v=HNzmrEgz_GI">sang</a> Eric Burdon of The Animals to the baby boomer generation. Unfortunately, that’s not always the case. As we get older, sometimes we are no longer capable of making our own decisions. Diseases that affect the brain such as dementia, stroke and head injury can impair cognition and thinking.</p> <p>Some people may choose to appoint a <a href="https://www.legislation.vic.gov.au/in-force/acts/medical-treatment-planning-and-decisions-act-2016/008">medical treatment decision-maker</a> or an <a href="https://www.legislation.vic.gov.au/in-force/acts/powers-attorney-act-2014/007">enduring power of attorney</a> to make certain decisions on their behalf. Alternatively, a legal tribunal or court may appoint <a href="https://www.legislation.vic.gov.au/in-force/acts/guardianship-and-administration-act-2019/005">a guardian or trustee</a> to help guide decisions about health care, finances, accommodation and lifestyle.</p> <p>Who is the right person to take on this important role? Is it the family member or partner who knows you best? Or someone with time and energy? Perhaps someone who understands the services you need – like a nurse, accountant or real estate agent?</p> <p>The role of a decision-making representative has <a href="https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-alrc-report-124/3-national-decision-making-principles-2/will-preferences-and-rights-2/#:%7E:text=The%20'best%20interests'%20principle%20is,an%20equal%20basis%20with%20others">changed significantly</a> in recent years, shifting from a paternalistic approach to a more person-centred focus. Our <a href="https://pubmed.ncbi.nlm.nih.gov/35157838/">research</a> looks at the differences between these approaches and how subconscious bias can influence decision-making.</p> <h2>Taking care</h2> <p>These days, guardianship has <a href="https://www.legislation.vic.gov.au/in-force/acts/guardianship-and-administration-act-2019/005">moved</a> from deciding what’s deemed to be in the individual’s “best interests” to what best reflects their “will and preferences”.</p> <p>While <a href="https://www.legislation.vic.gov.au/repealed-revoked/acts/guardianship-and-administration-act-1986/089">previously</a>, decisions were made for the person by their guardian or representative, new laws require representatives to enact the person’s “will and preferences”. That is, to make decisions with them.</p> <p>This is an important difference. The newer model gives the represented person more autonomy over personal, financial and other decisions. It recognises that even though a person may struggle with aspects of decision-making, they should not be excluded from decisions about how they live their life. This fundamental shift was <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6313688/">earlier adopted</a> by the United Nations in the <a href="https://www.ohchr.org/en/hrbodies/crpd/pages/conventionrightspersonswithdisabilities.aspx">Convention on the Rights of Persons with Disability</a>, to which Australia is a signatory.</p> <h2>Challenging in real world situations</h2> <p>The will and preferences <a href="https://supporteddecisionmaking.com.au/wp-content/uploads/sites/4/2021/08/Realising-will-preferences-and-rights-reconciling-differences-on-best-practice-support-for-decision-making.pdf">framework</a> may sound simple, but it can be <a href="https://www.tandfonline.com/doi/full/10.1080/09687599.2021.1941781">challenging in practice</a>, when concepts of empowerment are tricky to define and the will of someone with cognitive difficulties is hard to discern.</p> <p>Representatives <a href="https://supporteddecisionmaking.com.au/wp-content/uploads/sites/4/2021/08/Realising-will-preferences-and-rights-reconciling-differences-on-best-practice-support-for-decision-making.pdf">bring their own biases, perceptions and lived experience</a> to the role of supporting another person to make decisions. This subjectivity is a natural and an inherent part of decision-making. The representative faces the challenge of setting aside their own opinion and, instead, stepping into the shoes of the represented person to give effect to what they want.</p> <p>A mismatch between the age, gender, ethnicity, religion or socioeconomic status of the representative and the represented person can exacerbate this challenge.</p> <p>An older able-bodied female, who is deeply religious and from a middle-to-high income background might find it difficult to represent a young man with a disability who is an atheist and from a working-class background. Now, imagine a scenario where the young man expresses a desire to go bungee-jumping or parachuting, despite previously showing a fear of heights. What’s his representative to do?</p> <p>Older people and women generally <a href="https://www.tandfonline.com/doi/abs/10.1080/1366987032000105315?journalCode=rjrr20">have a lower appetite for risk</a>, as do those who have a faith and with a high socioeconomic status.</p> <p>A heightened perception of danger or a feeling the activity as frivolous, may lead to the representative reframing the situation with their subconscious bias. They may fail to respect the younger person’s will and preferences.</p> <p>Understanding what might shape a representative’s approach to decision-making is essential. Especially when decisions involve <a href="https://theconversation.com/do-you-want-to-be-resuscitated-this-is-what-you-should-think-about-before-deciding-105506">health</a> or <a href="https://theconversation.com/theres-no-need-to-lock-older-people-into-nursing-homes-for-their-own-safety-73954">living arrangements</a>.</p> <h2>3 things to look for when selecting a legal decision-making representative</h2> <p><strong>1. Deep understanding</strong></p> <p>An intimate understanding of your situation is crucial. An ideal representative is someone who actively listens and has a holistic view of your circumstances. This may come from discussions with you and your loved ones. The representative must be careful your views are not outweighed by those of family or friends who are often more vocal. They should have a deep sense of who you are as an individual.</p> <p><strong>2. Self-awareness</strong></p> <p>The person you choose should be able to describe their personal views and values and understand how their perspective may influence their decisions. This is vital to mitigate the effects of pre-existing bias. They should be able to reflect on their own lived experiences, to understand how their history shapes their approach to decision-making. They should be able to assess whether what you would do is the same as what they think you should do, and why.</p> <p><strong>3. Effective documentation</strong></p> <p>A record of conversations between the representative and represented person often helps to illuminate a person’s will and preferences. Writing or recording compels us to commit to an idea and explain what we mean. It helps to clarify what is intended far better than a one-time conversation that may be remembered differently by participants.</p> <p>Further research is needed to better match representatives with represented persons. Improved tools are needed to identify the role of bias in decision-making and evaluate whether the represented person’s wills and preferences are being respected.<img style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important;" src="https://counter.theconversation.com/content/177631/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" /></p> <p><em><a href="https://theconversation.com/profiles/joseph-ibrahim-252671">Joseph Ibrahim</a>, Professor, Health Law and Ageing Research Unit, Department of Forensic Medicine, <a href="https://theconversation.com/institutions/monash-university-1065">Monash University</a> and <a href="https://theconversation.com/profiles/amelia-grossi-1280226">Amelia Grossi</a>, , <a href="https://theconversation.com/institutions/monash-university-1065">Monash University</a></em></p> <p><em>Image credits: Shutterstock </em></p> <p><em>This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/how-to-choose-a-legal-decision-maker-as-you-get-older-3-things-to-consider-177631">original article</a>.</em></p>

Legal

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"I am a woman": Boxer launches legal action after gold medal win

<p>Imane Khelif has filed an official complaint over online bullying and harassment she has been subject to throughout the course of the Paris Olympics.</p> <p>The Algerian boxer, who took home the gold medal in the women's competition, has been at the centre of a wave of abuse over her gender, with misinformation circulating over her gender. </p> <p>According to Khelif's lawyer Nabil Boudi, the gold medallist has filed a legal complaint in France for online harassment.</p> <p>“The boxer Imane Khelif has decided to begin a new fight, a fight for justice, dignity and honour,” Boudi said in a statement, saying Khelif had filed the complaint for “aggravated online harassment … to Paris prosecutors”.</p> <p>He added, “The investigation will determine who was behind this misogynist, racist and sexist campaign, but will also have to concern itself with those who fed the online lynching.”</p> <p>The “iniquitous harassment” the boxing champion had been subjected to would remain “the biggest stain on these Olympic Games”, said Boudi.</p> <p>On Saturday, Khelif emerged victorious in the women’s 66kg final against China’s Yang Liu in a unanimous points decision, having been the focus of intense scrutiny in the French capital for the duration of the Games. </p> <p>After her victory, Khelif said the gold medal she had won was the best response to her critics.</p> <p>Asked by reporters about the row over her eligibility, she said, “I am fully qualified to take part, I am a woman like any other. I was born a woman, lived a woman and competed as a woman.”</p> <p><em>Image credits: Ulrik Pedersen/CSM/Shutterstock Editorial </em></p>

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Michael Schumacher’s family's huge legal victory

<p>Michael Schumacher's family are celebrating a big win against a German magazine, after they published what they claimed was an "exclusive interview" but was actually AI-generated. </p> <p>The family have received a compensation payment of 200,000 euros ($327,065 AUD) more than a year after the magazine printed the fake interview with the Formula One legend. </p> <p>In April 2023, Schumacher appeared on the front cover of German publication Die Aktuelle under the headline, “Michael Schumacher, the first interview”.</p> <p>The publishers left a very small hint on the page that the article wasn't real, although adding that the interview “sounded deceptively real”.</p> <p>The article seemed to be a real interview, featuring artificial "quotes" from Schumacher about his health and his family. </p> <p>However, Schumacher has famously not been seen publicly since his ill-fated skiing accident in the French alps in December 2013, and his health battle has been kept intensely private by his family. </p> <p>But the article appeared to say otherwise, with one of there fake quotes reading, "I can, with the help of my team, actually stand by myself and even slowly walk a few steps.”</p> <p>“My wife and my children were a blessing to me and without them I would not have managed it. Naturally they are also very sad, how it has all happened."</p> <p>“They support me and are standing firmly at my side.”</p> <p>A spokesperson for the Schumacher family confirmed to Reuters the $327,065 judgement had been made against Funke Mediengruppe, the owners of the magazine.</p> <p>Funke Mediengruppe apologised to the family in the aftermath of the article and the editor of Die Aktuelle was sacked two days after it was published.</p> <p><em>Image credits: Attila Kisbenedek/EPA & HANNIBAL HANSCHKE/EPA-EFE / Shutterstock Editorial </em></p>

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Iconic blonde bombshell Cindy Morgan dead at 69

<p>Cindy Morgan has passed away aged 69. </p> <p>The actress, who gained fame in the 1980s for her iconic blonde bombshell role as Lacey Underall in the cult classic film <em>Caddyshack, </em>was found dead in her room with no foul play suspected according to TMZ. </p> <p>A representative for the Palm Beach County Sheriff’s Office confirmed on Saturday that the actress passed away due to natural causes. </p> <p>Morgan's roommate reportedly called police to their Lake Worth Beach home on December 30, 2023 when she returned from her holiday and got no response after knocking on the actress' door. </p> <p>TMZ reported that her roommate told police she smelled a strong odour coming from inside, before they found her dead. </p> <p>In addition to playing Lacey in the iconic 1980 comedy hit alongside Bill Murray and Rodney Dangerfield, she also starred in 80s sci-fi flick <em>Tron  </em>as Dr. Lora Baines and computer program Yori. </p> <p>Morgan graduated from Northern Illinois University with a degree in communications, before her big break on the screen. </p> <p>She also appeared in a number of TV shows over the years, including <em>The Love Boat, Bring ‘Em Back Alive, The Fall Guy, The Larry Sanders Shows </em>and more. </p> <p><em>Images: Getty</em></p>

Caring

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"I can't go for that": Hall and Oates in bitter legal battle

<p>In a turn of events to rival any classic Hall & Oates song about heartbreak, betrayal and possibly a saxophone solo, the iconic musical duo has found themselves embroiled in a legal battle that might just be their most melodramatic performance yet.</p> <p>Daryl Hall, the soulful half of the duo, has accused longtime partner John Oates of committing the "ultimate partnership betrayal". Forget "Maneater", this is more like "Share Eater". In a court declaration that reads like the lyrics of a soulful ballad, Hall lamented the deterioration of his relationship with Oates, and trust us, it's not your typical "I can't go for that (no can do)" situation.</p> <p>The duo's joint venture, including trademarks, personal name and likeness rights, record royalty income and even the sacred social media assets, are now centre stage for a legal showdown. It's not quite the Hall & Oates Reunion Tour we were all hoping for.</p> <p>It appears Oates is planning to sell his share of Whole Oats Enterprises LLP without Hall's permission (cue dramatic music) – and Hall is not taking this lying down; he's filed a lawsuit to keep the transaction on pause, turning their dispute into a legal chart-topper.</p> <p>A judge has issued a temporary restraining order, effectively hitting the pause button on Oates' plan to part ways with Whole Oats Enterprises, with lawyers no doubt drafting lyrics for the inevitable courtroom musical as we speak.</p> <p>Oates, not one to let the accusations slide, fired back in his court filing, expressing disappointment in Hall's "inflammatory, outlandish, and inaccurate statements". He claims he's been trying to enhance their business partnership, but it seems like Hall might not be feeling the groove.</p> <p>The legal documents reveal that Hall is deeply troubled by the deterioration of their relationship, and who can blame him? It's not every day your musical partner decides to sell the band without even a courtesy call.</p> <p>Amid accusations of confidentiality breaches and timing that could rival the best plot twists, this court drama has all the elements of a hit '80s ballad. Will the duo find a way to harmonise once more, or is this the end of the road for Hall & Oates? We'll have to wait for the next verse in this legal serenade.</p> <p>In the meantime, keep those records spinning and maybe throw in some tissues for the emotional rollercoaster. It's a private affair gone public, and the fans are left wondering, "Did I miss the memo about this 'Global Divorce' album?"</p> <p><em>Image: Instagram</em></p>

Legal

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New royal book pulled from shelves over huge legal blunder

<p>Copies of an explosive new book about the royal family are being pulled from shelves and destroyed after a translation error "accidentally named" the alleged "royal racist". </p> <p>Sales of the new book <em>Endgame</em>, written by Omid Scobie who also wrote <em>Finding Freedom</em> about Harry and Meghan's exit from the royal family, were "temporarily" put on hold just days after its release after what has been labelled an error. </p> <p>According to Xander, the publishers of the Dutch edition of Scobie's book, a translation error led to a member of the royal family being identified as the person who made comments about baby Archie's skin colour. </p> <p>“[We are] temporarily withdrawing the book by Omid Scobie from sale. An error occurred in the Dutch translation and is currently being rectified,” the company said in a statement on Tuesday.</p> <p>Meanwhile, <em><a href="https://www.thesun.co.uk/royals/24884315/royal-racist-accidentally-named-omid-scobie/" target="_blank" rel="noopener">The Sun</a></em> claims that thousands of copies of the book are now being destroyed as a result.</p> <p>The "racist royal" scandal dates back to when Prince Harry and Meghan Markle sat down with Oprah Winfrey for a tell-all interview in 2021, when Markle  alleged that while she was pregnant with their first child, Prince Archie, there were “concerns and conversations” from a member of the royal family about how dark his skin might be.</p> <p>The Duchess of Sussex stopped short of naming the person involved, telling Winfrey, “I think that would be very damaging to them.”</p> <p>In the original edition of his book, Scobie also declines to identify the royal, claiming libel laws prevented him from doing so – although he has confirmed he knows who it is.</p> <p>“I do know who made the comments about Archie’s skin colour,” he told UK program <em>Good Morning</em> during his book press tour.</p> <p>“The names were mentioned in letters between Meghan and Charles that were exchanged sometime after the Oprah interview."</p> <p>“We know from sources that Charles was horrified that that’s how Meghan felt. Those conversations were, and that he wanted to, sort of as a representative for the family, have that conversation with her.</p> <p>“And it is why I personally think they have been able to move forward with some kind of line of communication afterwards. Though they may not see eye-to-eye on it.”</p> <p>It’s understood the royal family member accidentally named in the Dutch edition was not the person Meghan had been referring to.</p> <p><em>Image credits: Getty Images / Harper Collins</em></p>

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No gavels, no hearsay and lots of drinking: a law expert ranks legal dramas by their accuracy

<p><em><a href="https://theconversation.com/profiles/dale-mitchell-1468293">Dale Mitchell</a>, <a href="https://theconversation.com/institutions/university-of-the-sunshine-coast-1068">University of the Sunshine Coast</a></em></p> <p>From Elle Woods in Legally Blonde to <a href="https://www.tandfonline.com/doi/abs/10.1080/10383441.2015.1087367">Jennifer Walters in She-Hulk</a>, Atticus Finch in To Kill a Mockingbird to Denny Crane in Boston Legal, our popular culture is often where we first see and witness legal practice.</p> <p>Sometimes this comes via the silver screen, other times television. But it would be wrong to think that all we see on legal television shows is accurate – even when it claims to capture reality.</p> <p>Most legal dramas are terrible at capturing the realities of law.</p> <h2>Not accurate: Law(less) and (dis)Order</h2> <p>Law and Order (1990-) innovated television drama by showcasing both the investigation of a crime by police, and then its prosecution in court. With its multiple spin-offs, including Law and Order: Special Victims Unit (1999-) and the shortlived Law and Order: Trial by Jury (2005-2006) (which had the <a href="https://www.youtube.com/watch?v=aolG65V1Dx8">best theme song of all the series</a>), the Law and Order franchise is a televisual legal juggernaut.</p> <figure><iframe src="https://www.youtube.com/embed/aolG65V1Dx8?wmode=transparent&amp;start=0" width="440" height="260" frameborder="0" allowfullscreen="allowfullscreen"></iframe></figure> <p>As with most serials, Law and Order presents the criminal justice system as moving quicker than you can say <em>dun dun</em>. This couldn’t be further from the truth. The mean duration of criminal law matters in Australian higher courts was <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/criminal-courts-australia/latest-release">almost one year</a> (50 weeks) across 2021-22.</p> <p>While <a href="http://classic.austlii.edu.au/au/legis/qld/consol_reg/ucpr1999305/s5.html">procedural rules in civil matters</a> require courts to facilitate the “just and efficient resolution of disputes at minimum expense”, in criminal law, speed and efficiency must not be prioritised over accuracy: a person’s liberty is at stake.</p> <p>Most criminal matters do not proceed to a full trial as an accused will often plead guilty to the charges. As a result, the matter proceeds to sentencing without prosecutors needing to prove the offence. The rates of this occurring are quite alarming. <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/criminal-courts-australia/latest-release">Data across 2021-22</a> reveals over 75% of defendants in Australian courts entered a guilty plea, and almost four in five criminal convictions (79%) resulted from a guilty plea.</p> <p><a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0009/1705761/32_1_8.pdf">Research suggests</a> defendants plead guilty for a variety of reasons, including to avoid the cost of a trial and to receive a lesser sentence. <a href="https://theconversation.com/pandemic-pushed-defendants-to-plead-guilty-more-often-including-innocent-people-pleading-to-crimes-they-didnt-commit-165056">Data from the United States</a> suggests the pressures of the pandemic led to innocent people pleading guilty to crimes they didn’t commit.</p> <p>If Law and Order was a more accurate reflection of criminal law, matters would proceed immediately to sentencing due to guilty pleas. And should an accused be found guilty, a chunk of their sentence would be reduced by time served awaiting trial.</p> <figure><iframe src="https://www.youtube.com/embed/60GV5lv8h3o?wmode=transparent&amp;start=0" width="440" height="260" frameborder="0" allowfullscreen="allowfullscreen"></iframe></figure> <h2>Not accurate: Suits</h2> <p>Suits (2011-19) centres around law firm partner Harvey Specter (Gabriel Macht) and his mentorship of Mike Ross (Patrick Adams) – the “lawyer” who never graduated law school and provides legal advice thanks to his photographic memory.</p> <p>This is, obviously, a brutal ethical breach for all involved, and clearly fraud. In Australia, law students who present themselves to be lawyers are <a href="https://www.abc.net.au/news/2016-09-07/law-graduate-jacob-reichman-fined-posing-solicitor-gold-coast/7824324">subject to sanctions</a> by the Legal Services Commission. They can <a href="https://www.lawyersweekly.com.au/biglaw/35821-fake-lawyer-cops-suspended-jail-sentence">cause harm to clients</a> who have hired their services. And the Legal Admissions Board may <a href="https://www.qlsproctor.com.au/2020/11/chief-justice-wants-answers-before-considering-lawyer-impersonators-bid-to-become-legal-practitioner/">deny their entry</a> into the profession.</p> <p>(Spoilers) Ross is eventually sentenced to two years in prison for this fraud, a similar sentence to <a href="https://www.law.com/thelegalintelligencer/almID/1202786675709/">a recent case in the United States</a>, but he only serves three months before solving a crime and earning early release. More unrealistic than this early release is that Ross does fairly quickly thereafter gain admission to the profession, which seems unlikely to occur so soon after such an act of fraud.</p> <p>While Suits has left its mark(le) on the popular imagination of law, it fails to address one of the primary duties of civil litigation: the duty of disclosure.</p> <p>The MacGuffin-ing of law is common in TV serials. It’s the “smoking gun” found on the day of the trial, or for the lawyers in Suits, the random document which shows up <em>during</em> the trial to turn the case - dramatically presented by our protagonists as they flail into court armed with this data sans ethics.</p> <p>This is not quite accurate.</p> <p>In adversarial legal systems like Australia, New Zealand, the UK and the US, civil litigation rules <a href="http://classic.austlii.edu.au/au/legis/qld/consol_reg/ucpr1999305/s211.html">require parties</a> to disclose to one another all documents in their possession or control which are directly relevant to a matter in dispute.</p> <p>This is a continuing duty, so if you discover such a document at any time during the case, it must be disclosed. While <a href="http://classic.austlii.edu.au/au/legis/qld/consol_reg/ucpr1999305/s212.html">exceptions</a> based on various privileges may apply, this essentially means civil litigation must be run in an “all cards on the table” manner. Randomly producing undisclosed material at trial requires the leave of the court and may result in orders of contempt and <a href="http://classic.austlii.edu.au/au/legis/qld/consol_reg/ucpr1999305/s225.html">cost penalties</a>.</p> <p>It’s not like the lawyers of Suits have ever really been concerned about ethics, though.</p> <figure><iframe src="https://www.youtube.com/embed/wUh9jomHZp4?wmode=transparent&amp;start=0" width="440" height="260" frameborder="0" allowfullscreen="allowfullscreen"></iframe></figure> <h2>Not accurate: How to Get Away with Murder(ing rules of evidence)</h2> <p>While most lawyers would support making it a criminal offence to critique Viola Davis, How to Get Away with Murder (2014-20) presents one of the most common offences within legal dramas: the haphazard approach to rules of evidence.</p> <p>Annalise Keating (Davis) and her ragtag team of morally illiterate law students (although I never see them studying?!?!) manipulate people to obtain evidence and then dramatically prompt witnesses on the stand to read this information into the record, or otherwise “sneak” it into the trial.</p> <p>This is not accurate. And it ignores the basic reality that so much of legal practice is about not just obtaining evidence, but ensuring that evidence is admissible in court.</p> <p>One of the most important rules of evidence deals with <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/ea199580/s59.html"><em>hearsay evidence</em></a>. A court cannot allow evidence to be considered if its reliability is unable to be interrogated. Witnesses can only present evidence that they saw, heard or perceived themselves. Unless an exception to the hearsay rule applies, such evidence would be inadmissible.</p> <p>Like in Suits, these approaches to presenting evidence may have serious implications. This poor trial management results in <a href="https://www.aic.gov.au/sites/default/files/2020-05/rpp074.pdf">delays to criminal trials.</a>.</p> <figure><iframe src="https://www.youtube.com/embed/rMB_Gw5-T-I?wmode=transparent&amp;start=0" width="440" height="260" frameborder="0" allowfullscreen="allowfullscreen"></iframe></figure> <h2>Accurate: Fisk</h2> <p>Fisk (2021-) follows Helen Tudor-Fisk (Kitty Flanagan), an established contract lawyer whose personal dramas lead her to move to the boutique Melbourne probate law firm of Gruber and Gruber (played by Marty Sheargold and Julia Zamero).</p> <p>Fisk excels in showing the importance of lawyer-client relations and the word-of-mouth that sustains much of small legal practice. It’s the anti-Suits, and Fisk is more powerful for it.</p> <p>The discussions of wills and estates and most basic legal principles in Fisk are mostly sound – and the show doesn’t need to get into “legalese” as matters are resolved out-of-court.</p> <p>This is a distinct reality of law: litigation is a last resort. Forms of <a href="https://www.qls.com.au/Practising-law-in-Qld/ADR/Alternative-Dispute-Resolution/Types-of-Alternative-Dispute-Resolution-(ADR)">alternative dispute resolution</a>, including mediation, negotiation and conciliation, have become the primary way of resolving legal disputes.</p> <p>Fuelled by <a href="https://www.ag.gov.au/legal-system/alternative-dispute-resolution/civil-dispute-resolution-act-2011">legislative changes</a> which require the exhaustion of alternative dispute resolution measures before proceeding to litigation, and a pursuit of reduced costs, the drama of trial is not something anyone should yearn for.</p> <figure><iframe src="https://www.youtube.com/embed/N1Qt0Wo1gGo?wmode=transparent&amp;start=0" width="440" height="260" frameborder="0" allowfullscreen="allowfullscreen"></iframe></figure> <h2>Accurate: Rake</h2> <p>Cleaver Greene, a character said to be loosely based on the career of a Sydney barrister, shows us the absolute madness of work as a “<a href="https://nswbar.asn.au/the-bar-association/senior-counsel#:%7E:text=Senior%20counsel%20are%20barristers%20who,a%20QC%20or%20queen's%20counsel.">silk</a>”. Rake excels at showing the reality of law. The show raises interesting and accurate questions of law (yes, it is true there is no <a href="https://opus.lib.uts.edu.au/bitstream/10453/18992/1/2011006119.pdf">explicit offence</a> of cannibalism in New South Wales) and presents Australian court process accurately.</p> <p>Thankfully, there’s not a gavel in sight. <a href="https://www.survivelaw.com/post/941-working-hardly-random-facts-about-the-gavel">Australian courts <em>do not</em> use gavels</a>, and their presence in legal dramas in Australian and UK courts shows a lack of attention to detail. The presence of the gavel as a symbol of justice is <a href="http://www5.austlii.edu.au/au/journals/NSWBarAssocNews/1994/17.pdf">an entirely American invention</a>.</p> <figure><iframe src="https://www.youtube.com/embed/qWWI2EdOssk?wmode=transparent&amp;start=0" width="440" height="260" frameborder="0" allowfullscreen="allowfullscreen"></iframe></figure> <p>Rake is accurate, in part, because the site of drama is rarely the courtroom, but rather Greene’s personal life. The accuracy of that element for law I will leave up to the jury. But with a <a href="https://www.tandfonline.com/doi/abs/10.1080/13218719.2013.822783">2014 study</a> finding 35% of lawyers engaged in hazardous or harmful drinking and another showing <a href="https://www.abc.net.au/news/2019-08-15/study-finds-high-rates-anxiety-depression-in-legal-profession/11412832">high rates of anxiety and depression</a> in the legal profession, the evidence is compelling.<!-- Below is The Conversation's page counter tag. Please DO NOT REMOVE. --><img style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important;" src="https://counter.theconversation.com/content/212880/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" /><!-- End of code. If you don't see any code above, please get new code from the Advanced tab after you click the republish button. The page counter does not collect any personal data. More info: https://theconversation.com/republishing-guidelines --></p> <p><a href="https://theconversation.com/profiles/dale-mitchell-1468293"><em>Dale Mitchell</em></a><em>, Lecturer in Law, <a href="https://theconversation.com/institutions/university-of-the-sunshine-coast-1068">University of the Sunshine Coast</a></em></p> <p><em>Image credits: Getty Images</em></p> <p><em>This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/no-gavels-no-hearsay-and-lots-of-drinking-a-law-expert-ranks-legal-dramas-by-their-accuracy-212880">original article</a>.</em></p>

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Brad Pitt and Angelina Jolie call it quits in epic legal battle

<p>Angelina Jolie and Brad Pitt have reportedly chosen to settle their acrimonious legal dispute over their jointly owned French winery, Château Miraval, through mediation rather than pursuing further court battles.</p> <p>According to recent court filings obtained from TMZ, Jolie, 48, and Pitt, 59, have mutually agreed to attempt mediation as a means to resolve their disagreements concerning the future of Château Miraval.</p> <p>This development comes in the wake of allegations from Jolie's former investment company, Nouvel, accusing Pitt and other "co-conspirators" of trying to maintain control over Château Miraval by allegedly misusing and depleting its assets.</p> <p>The court documents claimed that Pitt had mismanaged the company's funds by directing substantial amounts towards personal endeavours, such as extravagant swimming pool renovations, repeated reconstruction of a staircase, and investing millions in restoring a recording studio.</p> <p>The legal dispute initially arose when Pitt filed a lawsuit against his former wife, claiming that she had sold her share of the winery to a Russian oligarch in 2021.</p> <p>According to a court filing, Pitt appeared upset over Jolie's decision to sell Nouvel to Stoli instead of him, and he allegedly failed to treat Nouvel as an equal partner in their business dealings.</p> <p>Furthermore, there were allegations that Pitt attempted to leverage the winery business to silence Jolie regarding the circumstances surrounding their divorce, which included allegations of abuse and disputes over child custody.</p> <p>Jolie had previously accused Pitt of physical abuse towards her and two of their children during a flight in 2016, leading to their separation later that same year.</p> <p>According to documents reported by the <em>New York Times</em> in 2022, Jolie's team claimed that Pitt engaged in a prolonged outburst during a flight from France to California in September 2016. The allegations included claims that Pitt had choked one of the children and struck another in the face, and had grabbed Jolie by the head and shaken her.</p> <p>In response to these accusations, Pitt's lawyer asserted that Pitt took responsibility for his actions but would not accept false claims against him. The actor has faced numerous personal attacks and misrepresentations throughout the legal proceedings.</p> <p>The former celebrity couple purchased Château Miraval, a picturesque country estate and winery located in the south of France, in 2008. Since then, it has become a focal point of their high-profile divorce.</p> <p>As they embark on the mediation process, both Angelina Jolie and Brad Pitt hope to find common ground and reach an amicable resolution to put an end to their protracted legal battle over Château Miraval.</p> <p><em>Images: CNN / Getty </em></p>

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Understanding legal jargon for your future

<p>Confused by some of the legal jargon you continually come across in getting your affairs in order? If so, here’s some of the most common ones explained.</p> <p>Do you know the difference between a power of attorney and an enduring power of attorney? What about the meaning of an enduring guardianship? Or what an executor does? As you start to get your affairs in order and plan for your future, you’re bound to come across a handful of terms again and again, so it’s best to understand what you’re reading or hearing from your lawyer. Here’s a guide to some of the most common terms you’re likely to come across when planning ahead.</p> <p>Note there are quite a few differences between the States and Territories. Something that is called one thing in Victoria for example, may not be called the same thing in Tasmania.</p> <p><strong>Advance health directive/Advance Care directive:</strong> Also called a living will and in the Northern Territory an Advance Personal Plan, this is a legal document that enables you to make decisions now about your medical treatment if you became sick or injured and you aren’t able to communicate your wishes or consent to treatment. If this happens, this bit of paper would effectively become your voice. Keep in mind, that an advance health directive would only come into effect if it applied to the treatment you required and only if you were unable to make reasoned decisions about a treatment when it was needed. The document could be a general statement of your wishes or it may give specific directions for various medical conditions and types of treatment that you do and don’t want. Medical staff can refer to this document if you were or became incapable of making the decisions yourself. Be aware however that advance directives are only legally binding on doctors in Queensland, South Australia and the Northern Territory.</p> <p><strong>Beneficiary:</strong> A person or institution, such as a charity, who can receive part or all of something from a will or trust. You’ll see this word used quite a bit, particularly when your attorney drafts your will.</p> <p><strong>Enduring guardianship or enduring power of guardianship:</strong> Where an enduring power of attorney allows your attorney to make decisions on your behalf when it comes to your assets, if you lose the capacity to make those decisions yourself, an enduring power of guardianship allows your guardian to make decisions on personal health and lifestyle options. It is another legal document that authorises a person of your choosing to make decisions on your behalf. Your appointed guardian cannot make decisions about your assets and finances. This person can however make decisions about where you live, the support services you have access to and the treatment you receive if you unable to do so yourself. In the ACT the functions of a guardian can be met by an attorney under a Power of Attorney. In South Australia, the functions of a guardian can be met by an Advance Care Directive. In Victoria and Western Australia, a guardian has some limitations on the decisions that he/she can make and can be overruled in relation to medical treatment decisions if you have appointed an enduring power of attorney (medical treatment) (in Victoria) or if you have made an Advance Health Directive (in Western Australia). In the ACT and Queensland, you cannot appoint a guardian, but you can appoint an attorney under a power of attorney who can make the same decisions as a guardian.</p> <p><strong>Estate plan:</strong> Many of you may already know what an estate plan is or have one in place but for those who don’t, it’s basically a plan of where your assets are distributed at your passing. Generally, the key documents that will form your estate plan include: will (which could include one or more testamentary trusts), superannuation death benefit nominations, power of attorney, enduring power of guardianship and advance directive. If you have made a binding death benefit nomination for your superannuation or insurance policies, your nominated beneficiaries will override anyone outlined in your will. There are specific rules however in relation to fee you can nominate to receive your super. An effective estate plan can also pass control of other assets that you may not hold personally, such as assets held by family trusts and family companies.</p> <p><strong>Executor:</strong> A person appointed by your will to administer your estate when you pass away. Basically, this person will make sure all of your debts are paid and that any assets and possessions you outlined in the will go to where you stipulated. The executor is nominated by you and becomes your legal personal representative. More than one executor can be nominated although if you do this, then you need to specify whether those executors must make joint decisions (they all agreed), or can make decisions on their own, or you include some other basis for how decisions will be made (for example by majority vote). An executor’s role generally involves notifying the beneficiaries, paying any outstanding taxes and debts, and distributing your assets as instructed in your will.</p> <p><strong>Intestacy:</strong> This is the word used to describe when a person passes away without leaving a will. The person is said to have passed intestate. That person’s estate would then pass to specified next of kin according to a set statutory order. If no eligible recipients can be found for your estate to be passed on to, then according to the law, the state is entitled to keep everything. Basically, the biggest drawback to not making a will is that you have no say as to who inherits your assets. It’s also more expensive to administer an estate without a will, with the extra cost deducted from your assets.</p> <p><strong>Power of attorney:</strong> If you’re planning on going overseas for a holiday or going to hospital for a month-long stay, it could be a good idea to make a power of attorney. By making a power of attorney you’re basically giving another person the authority to make legal decisions about your assets and finances on your behalf. You can limit the scope of a power of attorney, for example so that it only applies to specific assets or for a certain period of time. If you’re looking longer term when planning for your future, it may be better to make an enduring power of attorney. The difference between a power of attorney (also known as a general power of attorney) and an enduring power of attorney is that a general power of attorney will stop if you lose the capacity to make your own decisions. An enduring power of attorney (as the name suggests) will remain in place even if you lose the capacity to make your own decisions. In the ACT and Queensland, your attorney can also make the same decisions as a guardian in relation to personal health, medical and lifestyle decisions. In Victoria, you can appoint an enduring power of attorney (medical treatment), which will overrule any guardian that you may have appointed, in relation to medical treatment. In the Northern Territory, legislation was introduced starting from 1 July 2014, which means that you can no longer appoint an enduring power of attorney.</p> <p><strong>Testamentary trust:</strong> This is a trust set up inside a will that only takes effect when the person who creates the will, passes away. The main benefit of a testamentary trust is to provide greater control over the distribution of assets which are held by the testamentary trust, to beneficiaries set out in the will. There are also tax and asset protection advantages to testamentary trusts, making them an effective estate planning tool for some people. It differs from a family trust which is created by deed and commences during your lifetime. The testamentary trust will be administered by a trustee who is usually appointed in the will and who must look after the assets for the benefit of the beneficiaries until the trust expires.</p> <p><span style="text-decoration: underline;"><em><em><strong>This article is for general information only and cannot be relied on as legal advice. You should seek formal legal advice on your specific circumstances.</strong></em></em></span></p> <p><em><em>Image credit: Shutterstock</em></em></p>

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The legal matters you need to consider as you get older

<p><em><strong>Barbara Binland is the pen name of a senior, Julie Grenness, in Melbourne, Victoria, Australia. She is a poet, writer, and part-time English and Maths tutor, with over 40 years of experience. Her many books are available on Amazon and Kindle.</strong></em></p> <p>As we are ageing, it is essential at some stage to be realistic and sort our legal affairs. This incorporates writing your last will and testament. It is an individual’s choice whether to use a will kit, or to engage a solicitor. We must decide on an executor of the will, to ensure any assets are disposed of, in accordance with our intentions.</p> <p>Secondly, it is an excellent idea to appoint a medical power of attorney to a trusted person, to factor in a case scenario if you are on life support. Someone needs a medical power of attorney to make tough decisions on your behalf.</p> <p>Thirdly, when writing your will, you need to list your beneficiaries. Moreover, you need to compile a file of your assets and investments. Furthermore, it is also a good intention to prepare any wishes for your funeral, burial or cremation. Do you wish to be an organ donor? Ultimately, if any doubts occur, it is always possible and feasible to seek advice from any legal professionals.</p> <p>Right, having done all that, it’s easy to think, “all sorted!” But remember, any golden oldie’s status can be affected by any change in circumstance, such as either health conditions, or by marriage, or divorce, or the death of a spouse. Then we may need to revise our will and testament.</p> <p>But, in the interim, put morbid thoughts to one side, that is all ‘worst case scenario’. Now we can plan for our happy and leisurely retirement, enjoying being ‘golden oldies’, anyway we choose!</p> <p>Here are the stats: 10/10 people are going to die, so appreciate being alive! Rise and smile!</p> <p><em>Image credit: Shutterstock</em></p>

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Nick Kyrgios’ legal case with “drunk” fan settled

<p dir="ltr">Nick Kyrgios has settled his legal case with the woman he <a href="https://oversixty.com.au/finance/legal/fan-accused-of-being-drunk-by-nick-kyrgios-wants-to-sue-him" target="_blank" rel="noopener">accused of being drunk</a> during one of his matches at Wimbledon.</p> <p dir="ltr">Kyrgios was playing against Rafael Nadal at Wimbledon in July when the Aussie star complained to the umpire about Anna Palus who was “costing him the game”. </p> <p dir="ltr">He said Palus was "drunk out of her mind" and "looks like she's had 700 drinks" which she took offence to after being removed from the crowd.</p> <p dir="ltr">Palus took offence to Kyrgios’ comments and proceeded to seek legal representation wanting to sue the tennis player for defamation. </p> <p dir="ltr">However, the case has been settled with Kyrgios apologising to Palus and donating money to a charity of her choosing.</p> <p dir="ltr">“On 10 July 2022, during the Wimbledon men’s final, I told the umpire that a fan, who I now know to be Anna Palus, was distracting me during the match, believing that she was drunk,” his statement via Knight Temple Law read.</p> <p dir="ltr">“I accept that belief was mistaken, and I apologise. </p> <p dir="ltr">“To make amends, I have donated £20,000 to the Great Ormond Street Hospital Charity, a charity chosen by Ms Palus. </p> <p dir="ltr">“I will not be commenting on this matter again.”</p> <p dir="ltr"><em>Image: Getty</em></p>

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Finding a legal resolution through mediation

<p>To say legal disputes can get messy is quite an understatement. And court is the last place you want to be with someone that you were previously close with.</p> <p>The good news is that there are alternatives. We’re going to look at mediation, an effective legal process that can be used to handle complicated disputes when there’s a need to preserve the relationship. We’re going to look at the ins and outs of this process, so you can figure out whether or not it’s in your best interest for your particular dispute.</p> <p><strong>What is mediation?</strong></p> <p>In a basic sense, mediation is a structured negotiation process with a third party involved. The third, independent party is known as the mediator and is brought in to help assist the groups identify and assess the different options they have for resolving disputes.</p> <p>Mediation is useful if there is a need for parties to find a way to preserve their relationship and the possibility that a judge’s decision won’t resolve the dispute.</p> <p>It also has the following advantages:</p> <ul> <li><strong>Time</strong> – mediation tends to resolve disputes much quicker than a trial.</li> <li><strong>Cost</strong> – mediation avoids the costs of preparing and running a trial entirely.</li> <li><strong>Flexibility </strong>– mediation gives both parties more control over the outcome. </li> <li><strong>Stress</strong> – mediation is less formal, and a much more relaxed environment.</li> <li><strong>Confidentiality</strong> – mediation by its nature is private and a judge is not informed.</li> <li><strong>Satisfaction</strong> – because both parties have had an influence in the decisions it’s more likely to please everybody.</li> <li><strong>Finality</strong> – the settlement can only be modified with agreement of all parties.</li> </ul> <p><strong>How does it work?</strong></p> <p>Basically, before a mediation commences, the mediator will consult both parties with a view to figure out the best process for coming to a dispute. This will also generally involve a discussion about the background of the matter and issues involved. </p> <p>The process itself is flexible and tailored to the circumstances. Mediators may assist the flow of negotiations and offer different perspectives. In the end if the parties come to an agreement the matter is settled in full or in part or if a conclusion is unable to be reached a trial may be necessary depending on the circumstances of the dispute.</p> <p>Have you ever found yourself in a legal dispute and how did you cope? Do you think mediation is an option you might look into exploring now?</p> <p><em>Image: Shutterstock</em></p>

Legal

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4 alternatives to legal action

<p>Legal action can be costly and time consuming. That being said, whenever you encounter legal problems there are some options around. We’ve taken a look at some of the alternatives to legal action that can see you achieve </p> <p><strong><span style="text-decoration: underline;">1. Mediation </span></strong></p> <p>This involves a trained mediator facilitating a negotiation, but not making binding decisions and is usually a good way of solving a dispute with lawyers present or not.</p> <p>Advantages:</p> <ul> <li>Introduction of a third party to appraise the case and a reflective approach to disputes</li> <li>Focused on interests of parties rather than legal rights and conciliatory in nature</li> <li>It can be quick, cheap and confidential with scope for non-monetary remedies</li> </ul> <p>Disadvantages:</p> <ul> <li>No appropriate when a court remedy is necessary</li> <li>Rarely produces, and mediator has no power to impose binding decision</li> </ul> <p><strong><span style="text-decoration: underline;">2. Early neutral evaluation</span></strong></p> <p>This is a non-binding process where a neutral party gives non-binding evaluations of the merits and flaw of a dispute in general, generally involving the opinion of a QC/retired judge.</p> <p>Advantages:</p> <ul> <li>Can be useful and assist parties that need to break a deadlock.</li> </ul> <p>Disadvantages:</p> <ul> <li>Process is non-binding and parties can ignore an opinion they disagree with.</li> </ul> <p><strong><span style="text-decoration: underline;">3. Expert determination</span></strong></p> <p>An independent third party with recognised expertise in the subject matter in dispute, assists the parties and helps them resolve the dispute.</p> <p>Advantages:</p> <ul> <li>Quick, cheap and confidential and gives parties a greater knowledge of how the factual evidence is likely to be decided if the case goes to trial.</li> <li>Can be effective where the parties anticipate a specific type of technical dispute.</li> </ul> <p>Disadvantages:</p> <ul> <li>Expert has no power to force his findings on the parties.</li> <li>The parties may provide that the determination of the expert is final and binding upon them, but recourse to the Courts is still necessary to enforce any determination.</li> </ul> <p><strong><span style="text-decoration: underline;">4. Arbitration</span></strong></p> <p>This is when the matter is determined by a professional arbitrator given power to impose a binding decision on both parties. Arbitration can, in that sense, be seen as a direct replacement for litigation.</p> <p>Advantages:</p> <ul> <li>Avoids using the courts and is confidential.</li> <li>Speedier and more informal than litigation.</li> <li>Potential for limited discovery.</li> </ul> <p>Disadvantages:</p> <ul> <li>Costs with arbitrations potentially taking a similar amount of time to litigation.</li> <li>An arbitrator's award may only be appealed on the limited grounds of manifest error of law on the face of the award, where the question is one of the general public importance.</li> </ul> <p><em>Image: Getty</em></p>

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5 legal terms you need to understand

<p>As we grow older we’re required to make a range of decisions regarding our health, wellbeing and assets that will be some of the most important we make in our life.</p> <p>So it goes without saying it’s important to understand the terms.</p> <p>We’ve taken a look at five legal terms every Australian senior needs to understand. Becoming acquainted with these terms is the best way to get the ball rolling. </p> <p><strong>1. Power of Attorney</strong></p> <p>Varying somewhat from state to state, a Power of Attorney is a legal documents giving someone legal authority to manage your financial affairs. This is useful if you find the demands of financial management too much or if you don’t want to burden certain member of your family with the responsibility of looking after your financial affairs.</p> <p><strong>2. Will</strong></p> <p>Generally speaking, a will is a formal document that’s designed to provide direction for the distribution of a person’s property and assents when they pass away. Making a will is no simple task, and requires the consideration of a range of complex financial, legal and tax issues, to ensure that your estate is distributed in accordance to your wishes.</p> <p><strong>3. Beneficiary</strong></p> <p>A beneficiary is the person who receives your assets when you pass away. It’s essential to make sure you have the correct names and details on your will to ensure the right beneficiary receives the right assets, as that is a mistake a lawyer can rarely fix.</p> <p><strong>4. Testamentary trust</strong></p> <p>Testamentary trusts are set up to protect the assets in a will, taking effect when the person who has created the will passes away. A trust is administered by a trustee (appointed in the will), who looks after the benefits of the beneficiaries until the trust expires.</p> <p>A testamentary trust is useful in the following instances:</p> <ul> <li>Beneficiaries are minors or have diminished mental capacity.</li> <li>Beneficiaries are not trusted to use inheritance wisely.</li> <li>Avoid split of family assets in event of a divorce settlement.</li> <li>Avoid split of family assets in event of bankruptcy proceedings.</li> </ul> <p><strong>5. Enduring Guardian</strong></p> <p>An Enduring Guardian can makes decisions on your behalf when you lose capability to do so. And Enduring Guardian has the capacity to make a range of important decisions regarding lifestyles, healthy and medicinal treatments, so it’s important to choose the right person.</p> <p><em>Image: Getty</em></p>

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Man’s huge legal debacle after mother dies in retirement village

<p dir="ltr">Heartbroken Aussies who have lost a family member at retirement villages have been left fuming after being slapped with hidden fees. </p> <p dir="ltr">Gerard Grant lost his mother Dulcie almost two years ago and grieved her death, hoping her affairs would be a simple process. </p> <p dir="ltr">Mr Grant decided to lease the unit that his mother had been staying at for 15 years when he was shocked to find that he would instead be faced with a $55,000 bill for renovations. </p> <p dir="ltr">"It was listing everything from changing over toilets, to door handles, to electrical work," he told <a href="https://9now.nine.com.au/a-current-affair/aussies-warn-about-retirement-village-exit-fees/2c9a556c-c0ae-479b-be91-e33065392676" target="_blank" rel="noopener">A Current Affair.</a> </p> <p dir="ltr">"It was basically gutting the entire unit and installing everything brand new, which, in our view, was incredibly unreasonable and unwarranted, an absolute waste of money.”</p> <p dir="ltr">Mr Grant was not having any of it and challenged the retirement village, which is now run by Centennial Living, who then lawyered up. </p> <p dir="ltr">Lawyers sent Mr Grant letters of demand to settle the sale of the lease which should see the family pocket a huge $500,000.</p> <p dir="ltr">However, the lawyers argued that the retirement village was entitled to the $55,000 for refurbishments. </p> <p dir="ltr">It was then that Mr Grant suspected that his mother’s unit was not empty, so he called the landline and a woman called telling him that she had moved in. </p> <p dir="ltr">Mr Grant told the woman that she shouldn’t be there because they haven’t yet given over the certificate for the lease.</p> <p dir="ltr">Ian Henschke, the chief advocate for National Seniors Australia, noted it was important for families to understand what they were getting into with retirement villages. </p> <p dir="ltr">"A lot of people don't realise is what they're often doing is simply buying a lease on the property. They don't own it," he said.</p> <p dir="ltr">He warned that families are left with costs and exit fees they never expected due to the complicated contract. </p> <p dir="ltr">Mr Henschke said it was up to the state governments to make it an easier process stating it was not fair on older citizens. </p> <p dir="ltr"><em>Image: A Current Affair </em></p>

Retirement Life

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Main legal issues facing seniors

<p>As we age so do our legal requirements, and the issues we can expect to face. While sometimes these issues are unavoidable, it’s important to know your rights.</p> <p>We’ve taken a look at the main legal issues facing seniors. Understanding what to expect if you have to face these issues will put you in the best position to navigate them successfully, ensuring your wishes are fulfilled and your rights are upheld. </p> <p><strong>Decision making to safeguard your wishes</strong></p> <p>Should something happen, you want to be confident your wishes will be upheld. You can do this by appointing an <a href="../finance/legal/2014/11/why-you-need-to-appoint-a-power-of-attorney-now/" target="_blank" rel="noopener"><strong><span style="text-decoration: underline;">Enduring Power of Attorney</span></strong></a>, which is someone who had the legal authority to manage your affairs when you are no longer able to.</p> <p>When choosing an Enduring Power of Attorney, it’s important you:</p> <ul> <li>Trust the person.</li> <li>Be confident they have no conflict of interest.</li> <li>Be confident they can make difficult decisions.</li> <li>Be confident they will listen to your wishes and respect your decisions.</li> </ul> <p><strong>Putting your will together</strong></p> <p>A will is a legal document that is filled with instructions for distributing your assets. To avoid <a href="../finance/legal/2016/03/common-mistakes-when-writing-a-will/" target="_blank" rel="noopener"><strong><span style="text-decoration: underline;">common will-writing mistakes</span></strong></a>, its important be thorough when putting this document together. Ultimately you should consider <a href="../finance/legal/2014/11/tips-for-preparing-a-will/" target="_blank" rel="noopener"><strong><span style="text-decoration: underline;">consulting an expert</span></strong></a>.</p> <p><strong>Superannuation distribution</strong></p> <p>Most superannuation funds have a death benefit nomination which gives you the power to nominate where the fund will be distributed, should you pass way. A binding nomination ensures you funds will be distributed according to your wishes.</p> <p><strong>Development of living situations</strong></p> <p>Sometimes arrangement for living at home with family members can break down, leaving seniors in a vulnerable position. By planning ahead and figuring out alternatives such as aged care you will be able to maintain a comfortable standard of living.</p> <p><strong>Senior abuse</strong></p> <p>Senior abuse can come in many forms – physical, psychological, financial, social abuse or neglect. If this is happening to you it’s important to seek out support. There is a range of organisations available for seniors who feel as though they’re suffering abuse, including the two below:</p> <ul> <li><a href="http://www.myagedcare.gov.au/financial-and-legal/elder-abuse-concerns" target="_blank" rel="noopener"><strong><span style="text-decoration: underline;">My Aged Care website </span></strong></a></li> <li><a href="http://www.eapu.com.au/elder-abuse" target="_blank" rel="noopener"><strong><span style="text-decoration: underline;">Elder Abuse Prevention Unit website</span></strong></a></li> </ul> <p><em>Image: Shutterstock</em></p>

Legal

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Archie’s parents make legal bid to move him to hospice

<p dir="ltr">The family of a 12-year-old boy who has been in a months-long coma have filed a legal action requesting permission to move their son into a hospice, after their legal fight to continue his life-support treatment was unsuccessful.</p> <p dir="ltr">After Hollie Dance and Paul Battersbee’s son Archie was found unconscious at their home on April 7, the couple were ruled against in a series of UK court hearings to keep their son on life support, with judges backing doctors who said Archie was brain dead and that further treatment wasn’t in his best interests.</p> <p dir="ltr">The couple announced the decision to move Archie to a hospice on Wednesday, after the <a href="https://www.oversixty.co.nz/health/caring/our-country-have-failed-a-12-year-old-archie-s-parents-concede-defeat" target="_blank" rel="noopener">European Court of Human Rights rejected a request to intervene</a> in the case.</p> <p dir="ltr">"We've now got a fight to see whether we can get him out of here to have a dignified passing at a hospice. It's just unfair,” Dance said following the decision.</p> <p dir="ltr">His parents said the London hospital where Archie has been treated informed them that life support would be withdrawn at 11am on Thursday BST (8pm AEST or 6pm NZST) unless a legal challenge over the hospice move was submitted by 9am.</p> <p dir="ltr">“I would like him out of here as quick as possible, really, and in a peaceful hospice to say goodbye and spend time with his family, uninterrupted by the noise and chaos,” Dance told the BBC.</p> <p dir="ltr">However, Barts Health NHS Trust, which runs the Royal London Hospital, said a previous High Court ruling requires that Archie remain in hospital until his treatment ends, and that moving him would cause him to deteriorate much faster because his condition is so unstable.</p> <p dir="ltr">Alistair Chesser, the chief medical officer of the trust, said in a statement that they would work with Archie’s family to prepare to withdraw treatment, but that no changes will be made to his care until “outstanding legal issues are resolved”.</p> <p><span id="docs-internal-guid-c8364e2d-7fff-0022-f605-5acb059128ba"></span></p> <p dir="ltr"><em>Images: Getty Images / Hollie Dance</em></p>

Caring

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Court to decide if Happy the elephant is a legal person

<p dir="ltr">An Asian elephant called Happy has lived at the Bronx Zoo for the past 45 years, but the question of whether she is legally human - and entitled to human rights - has been posed to New York’s highest court, per <em><a href="https://www.nzherald.co.nz/travel/happy-the-elephants-historic-human-rights-trial-for-legal-person-status/365QJSJP4AF5DJLUZ34JYDE7RA/" target="_blank" rel="noopener">NZHerald</a></em>.</p> <p dir="ltr">On one hand, advocates at the Nonhuman Rights Project say she is an autonomous, cognitively complex elephant and should be released from her current enclosure under a habeas corpus proceeding, which is a way for people to challenge illegal confinement.</p> <p dir="ltr">Bronx Zoo, on the other hand, say she shouldn’t be considered a person, with an attorney arguing that Happy isn’t illegally imprisoned nor a person, and is in fact a well-cared for elephant that is “respected as the magnificent creature she is”.</p> <p dir="ltr">The Nonhuman Rights Project are calling for Happy to be moved from a “one-acre prison” at the zoo to another, more spacious sanctuary.</p> <p dir="ltr">“She has an interest in exercising her choices and deciding who she wants to be with, and where to go, and what to do, and what to eat,” attorney Monica Millar, representing the advocates, told the Associated Press ahead of the oral arguments.</p> <p dir="ltr">“And the zoo is prohibiting her from making any of those choices herself.”</p> <p dir="ltr">The group said Happy became the first elephant to pass a self-awareness indicator test in 2005, after repeatedly touching a white “X” on her forehead while looking into a large mirror.</p> <p dir="ltr">Meanwhile, the zoo and its supporters argue that a win for the Nonhuman Rights Project could prompt more legal action on behalf of animals, including pets and other zoo animals.</p> <p dir="ltr">In a prepared statement, the zoo accused the Nonhuman Rights Project (NRP) of exploiting Happy for their “coordinated agenda”.</p> <p dir="ltr">“The blatant exploitation of Happy the elephant by NRP to advance their coordinated agenda shows no concern for the individual animal and reveals the fact they are willing to sacrifice Happy’s health and psychological wellbeing to set precedent,” the zoo said.</p> <p dir="ltr">NRP’s say that Happy’s right to “bodily liberty” is being violated by the zoo, no matter how she is treated, arguing that if Happy’s right to liberty under habeas corpus is recognised by the courts, she will be a “person” and must be released.</p> <p dir="ltr">In court, Judge Jenny Rivera asked Miller about the implication of NRP’s position for other human-animal relationships.</p> <p dir="ltr">“So does that mean that I couldn’t keep a dog?” she asked. “I mean, dogs can memorise words.”</p> <p dir="ltr">Miller said there was currently more evidence showing elephants are extraordinarily cognitively complex and have advanced analytical abilities.</p> <p dir="ltr">The high court case comes after lower courts have ruled against NRP in similar cases, including one involving a chimpanzee in upstate New York named Tommy.</p> <p dir="ltr">It also comes after a different animal rights group won their case to allow Colombian drug kingpin Pablo Escabar’s “cocaine hippos” to be recognised as people with legal rights in the US - though it had no ramifications for the hippos, who currently reside in Colombia.</p> <p dir="ltr">As of publication, the panel of seven judges presiding over the case has <a href="https://www.thelawyersdaily.ca/articles/36592/tale-of-two-animals-marcel-strigberger-" target="_blank" rel="noopener">reserved its decision</a> on the matter, with the answer expected in the coming months.</p> <p><span id="docs-internal-guid-bc920373-7fff-3dd4-d61d-0a2d15961bd9"></span></p> <p dir="ltr"><em>Image: Gigi Glendinning (Nonhuman Rights Project)</em></p>

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Ed Sheeran wins huge legal case

<p dir="ltr">In a high-profile trial, Ed Sheeran has clinched a victory in a copyright infringement case over his 2017 song <em>Shape of You</em>. </p> <p dir="ltr">The British singer, along with his two co-writers Johnny McDaid and Steve Mac, were accused of plagiarising Sami Chokri’s 2015 song <em>Oh Why</em>.</p> <p dir="ltr">In his ruling, the judge concluded that Sheeran “neither deliberately nor subconsciously” copied a phrase from <em>Oh Why</em> when writing <em>Shape of You</em>, as Sheeran emphasised during the trial. </p> <p dir="ltr">In a video statement <a href="https://twitter.com/edsheeran/status/1511631955238047751">posted to Twitter</a>, Sheeran said, “While we’re obviously happy with the result, I feel like claims like this are way too common now and have become a culture where a claim is made with the idea that a settlement will be cheaper than taking it to court. Even if there’s no base for the claim.” </p> <p dir="ltr">“It’s really damaging to the songwriting industry. There’s only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify.”</p> <p dir="ltr">He continued, “I don’t want to take anything away from the pain and hurt suffered by both sides of this case, but I just want to say that I’m not an entity. I’m not a corporation. I’m a human being. I’m a father. I’m a husband. I’m a son. Lawsuits are not a pleasant experience and I hope with this ruling it means in the future baseless claims like this can be avoided.”</p> <p dir="ltr">Chokri, who performs under the name Sami Switch, along with his co-writer, sued Sheeran over similarities in the songs in 2018. </p> <p dir="ltr">During the 11-day trial in London, Sheeran denied he “borrows” ideas from other recording artists, while saying he “always tried to be completely fair” when crediting his inspirations and contributors. </p> <p dir="ltr">In their testimony, Sheeran, McDaid and Mac all denied being aware of <em>Oh Why</em> prior to writing <em>Shape Of You</em>.</p> <p dir="ltr"><em>Image credits: Getty Images</em></p>

Music

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The metaverse: three legal issues we need to address

<p>The “<a href="https://www.wired.com/story/what-is-the-metaverse/" target="_blank" rel="noopener">metaverse</a>” seems to be the latest buzzword in tech. In general terms, the metaverse can be viewed as a form of cyberspace. Like the internet, it’s a world – or reality, even – beyond our physical world on Earth.</p> <p>The difference is that the metaverse allows us to immerse a version of ourselves as <a href="https://medium.com/@ppreddy576/digital-avatars-and-working-with-human-like-creatives-b84f24005a05" target="_blank" rel="noopener">avatars</a> in its environment, usually through <a href="https://hbr.org/2016/10/the-mainstreaming-of-augmented-reality-a-brief-history" target="_blank" rel="noopener">augmented reality</a> (AR) or <a href="https://www.britannica.com/technology/virtual-reality" target="_blank" rel="noopener">virtual reality</a> (VR), which people are and will increasingly be able to access using tools like VR goggles.</p> <p>While it all seems very exciting, a curious lawyer like me is inclined to ask: who or what governs the metaverse? The way I see it, there are three key areas which, at this stage, are legally murky.</p> <p><strong>1. A boundless marketplace</strong></p> <p>Transactions in the metaverse are generally monetised using cryptocurrency or <a href="https://edition.cnn.com/2021/03/17/business/what-is-nft-meaning-fe-series/index.html" target="_blank" rel="noopener">NFTs</a> (non-fungible tokens). An NFT is a unique digital asset: it could be an image, a piece of music, a video, a 3D object, or another type of creative work. The NFT market is booming – in some cases we’re talking about <a href="https://edition.cnn.com/style/article/beeple-first-nft-artwork-at-auction-sale-result/index.html" target="_blank" rel="noopener">sales</a> equivalent to millions of pounds.</p> <p>While it’s difficult to say whether this is simply a trend, or a new and exciting form of capital investment, these kinds of transactions raise some interesting legal questions.</p> <p>For example, in the “real” world, when it comes to purchasing a piece of art, property law dictates that <a href="https://www.reedsmith.com/en/perspectives/2021/05/reed-smith-guide-to-the-metaverse" target="_blank" rel="noopener">ownership</a> is two-fold. First, ownership can be attributed in the actual physical art work. And second, the buyer may or may not own the intellectual property of the art work, depending on the terms of the sale.</p> <p>But what kind of ownership is precisely included in a transaction of digital art? International law firm <a href="https://www.reedsmith.com/en/perspectives/2021/05/reed-smith-guide-to-the-metaverse" target="_blank" rel="noopener">Reed Smith</a> has said that “ownership” in the metaverse is nothing more than a form of licensing, or provision of services. In such instances, true ownership still lies with the owner. This may mean, for example, that the buyer cannot sell the item without permission from the true owner.</p> <p>Virtual real estate has also become an NFT, with individuals and companies <a href="https://theconversation.com/real-estate-in-the-metaverse-is-booming-is-it-really-such-a-crazy-idea-174021" target="_blank" rel="noopener">spending enormous sums</a> to own a “property” in the metaverse. Do the intricacies of land law apply here? For example, will real-world legislation cover trespassers on private land in the metaverse? Can you take out a mortgage on your virtual property?</p> <p>The metaverse may also be susceptible to hosting a virtual marketplace somewhat like <a href="https://www.newscientist.com/article/mg24933260-400-silk-road-review-the-true-story-of-the-dark-webs-illegal-drug-market/" target="_blank" rel="noopener">Silk Road</a>, which was a dark web marketplace dealing in illegal drugs, weapons and, allegedly, “<a href="https://www.bbc.co.uk/news/av/technology-24378137" target="_blank" rel="noopener">murder for hire</a>”. What kinds of laws can be put in place to safeguard against this happening in the metaverse? It would be ideal to have a global regulatory authority overseeing the metaverse, although this would be difficult to implement.</p> <p><strong>2. Data</strong></p> <p>Another possible legal implication of the metaverse is around data and data protection. The metaverse will expose new categories of <a href="https://www.cms-lawnow.com/ealerts/2022/01/legal-advice-in-the-metaverse" target="_blank" rel="noopener">our personal data</a> for processing. This might include facial expressions, gestures and other types of reactions an avatar could produce during interactions in the metaverse.</p> <p>The EU’s General Data Protection Regulation (<a href="https://gdpr.eu/" target="_blank" rel="noopener">GDPR</a>) could arguably apply to the metaverse, as could the <a href="https://www.legislation.gov.uk/ukpga/2018/12/contents/enacted" target="_blank" rel="noopener">UK’s Data Protection Act</a>. But given the novel nature of the metaverse, to ensure that users’ rights are protected, the processes governing informed consent around data processing may need to be revisited.</p> <figure class="align-center "><img src="https://images.theconversation.com/files/443780/original/file-20220201-17-1a83bq0.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=754&amp;fit=clip" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px" srcset="https://images.theconversation.com/files/443780/original/file-20220201-17-1a83bq0.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=600&amp;h=338&amp;fit=crop&amp;dpr=1 600w, https://images.theconversation.com/files/443780/original/file-20220201-17-1a83bq0.jpg?ixlib=rb-1.1.0&amp;q=30&amp;auto=format&amp;w=600&amp;h=338&amp;fit=crop&amp;dpr=2 1200w, https://images.theconversation.com/files/443780/original/file-20220201-17-1a83bq0.jpg?ixlib=rb-1.1.0&amp;q=15&amp;auto=format&amp;w=600&amp;h=338&amp;fit=crop&amp;dpr=3 1800w, https://images.theconversation.com/files/443780/original/file-20220201-17-1a83bq0.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=754&amp;h=424&amp;fit=crop&amp;dpr=1 754w, https://images.theconversation.com/files/443780/original/file-20220201-17-1a83bq0.jpg?ixlib=rb-1.1.0&amp;q=30&amp;auto=format&amp;w=754&amp;h=424&amp;fit=crop&amp;dpr=2 1508w, https://images.theconversation.com/files/443780/original/file-20220201-17-1a83bq0.jpg?ixlib=rb-1.1.0&amp;q=15&amp;auto=format&amp;w=754&amp;h=424&amp;fit=crop&amp;dpr=3 2262w" alt="A rendering of two avatars shaking hands." /><figcaption><span class="caption">Interactions in the metaverse will expose new types of personal data.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-illustration/business-man-wear-virtual-glasses-shaking-2089653463" target="_blank" rel="noopener">Athitat Shinagowin/Shutterstock</a></span></figcaption></figure> <p>Further, the “no-boundaries” nature of the metaverse means that while we might want to assume the GDPR will apply, the clauses dealing with transfer and processing of data outside the EU may need to be clarified. The GDPR applies <a href="https://www.metaverselaw.com/category/gdpr/" target="_blank" rel="noopener">based on</a> the location of the subject when their data is processed, not on their home country or citizenship.</p> <p>So can we look to the location based on the person operating the avatar, or is it more appropriate to look at the avatar itself, since it’s the avatar’s data that will be processed? And if we look to the avatar’s location, how would we determine which jurisdiction the metaverse falls under?</p> <p><strong>3. User interactions</strong></p> <p>When users interact through their avatars, we may have situations where some kind of altercation occurs that would equate to breaking the law, if it took place between people in the real world. Such incidents could be in breach of tort law (which covers civil claims such as negligence or nuisance) or criminal law (involving illegal acts and crime such as assault, murder, burglary or rape).</p> <p>Imagine one avatar assaults another. Could we apply criminal laws of assault and battery to this situation? How could we make an avatar responsible for their actions in the metaverse? This would be complicated, because it would mean that we need to attribute a <a href="https://www.cms-lawnow.com/ealerts/2022/01/legal-advice-in-the-metaverse" target="_blank" rel="noopener">legal persona</a> to the avatar, giving them rights and duties within a legal system; allowing them to sue or be sued.</p> <p>Proving assault or battery would also be much more difficult because it usually requires “<a href="https://www.cps.gov.uk/legal-guidance/offences-against-person-incorporating-charging-standard#:%7E:text=The%20offence%20is%20committed%20when,or%20caused%20the%20bodily%20harm." target="_blank" rel="noopener">actual bodily harm</a>”. In the metaverse, there will naturally be no actual bodily harm. It would be challenging to prove harm, loss or injury suffered by an avatar.</p> <p>Worryingly, <a href="https://www.thetimes.co.uk/article/my-journey-into-the-metaverse-already-a-home-to-sex-predators-sdkms5nd3" target="_blank" rel="noopener">sexual predators</a> are already emerging in the metaverse, masking their identity behind an avatar that may not easily be traced back to its operator in the real world. For example, we’ve seen incidents of <a href="https://www.technologyreview.com/2021/12/16/1042516/the-metaverse-has-a-groping-problem/" target="_blank" rel="noopener">groping</a>. Users in the metaverse can wear haptic vests or other technologies which would actually allow them to feel the sensations if they were touched or groped.</p> <p><a href="https://www.reeds.co.uk/insight/should-sexual-harassment-be-a-criminal-offence-in-the-uk/" target="_blank" rel="noopener">Sexual harassment laws</a> do not require physical contact to constitute sexual harassment. But are existing laws adequate to deal with this issue? Within the environment of VR and gaming, for example, upon whom rests the responsibility to ensure the safety of users?</p> <p>There is little doubt issues of sexual harassment will make their way into the metaverse, particularly if unscrupulous users know this is a grey area. Believing that their actions cannot be proved, or that they cannot be held responsible for events that take place in the metaverse, might embolden such behaviour.</p> <p>This comes back to the question of legal personas of avatars – is a legal persona necessary to make avatars responsible for their actions in the metaverse? And what kind of standards and criteria need to be in place to distinguish between a “legal” avatar and the true legal person who operates that avatar? These issues should all be addressed before the metaverse becomes mainstream.<!-- Below is The Conversation's page counter tag. Please DO NOT REMOVE. --><img style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important; text-shadow: none !important;" src="https://counter.theconversation.com/content/175891/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" /><!-- End of code. If you don't see any code above, please get new code from the Advanced tab after you click the republish button. The page counter does not collect any personal data. More info: https://theconversation.com/republishing-guidelines --></p> <p><em><a href="https://theconversation.com/profiles/pin-lean-lau-1282877" target="_blank" rel="noopener">Pin Lean Lau</a>, Lecturer in Bio-Law, Brunel Law School | Centre for Artificial Intelligence: Social &amp; Digital Innovations, <a href="https://theconversation.com/institutions/brunel-university-london-1685" target="_blank" rel="noopener">Brunel University London</a></em></p> <p><em>This article is republished from <a href="https://theconversation.com" target="_blank" rel="noopener">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/the-metaverse-three-legal-issues-we-need-to-address-175891" target="_blank" rel="noopener">original article</a>.</em></p> <p><em>Image: Getty Images</em></p>

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