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A Body of Law II

My last blog dealt with the original rule that there is ‘no ownership in the human body’ and briefly discussed the origins of the ‘work and skill’ exception.

I now move on to a bigger and better question, what about tissue or other matter taken from your body? Surely, you would have ownership of that, right?

Well, let’s just say it’s complicated.

I would like to introduce you to Mr John Moore of Seattle USA.1 Mr Moore consulted with Dr Golde after being diagnosed as suffering from hairy-cell leukaemia. As part of his treatment Mr Moore had his spleen removed in October 1976 by Dr Golde. The operation saved Mr Moore’s life.

What Mr Moore did not know is that Dr Golde took his spleen and used it as part of research. In fact, Dr Golde knew that Mr Moore’s blood products could have great commercial uses before the operation to remove his spleen was undertaken.

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A body of Law

I’m going to ask you a strange question. Have you ever wondered whether you own your own body?

What if scientists took samples from you which were used to cure a deadly disease? What if the great legends of fiction became real and a modern day Frankenstein was created, with the use of your left arm? Could you claim millions of dollars for the use of your body part? Or would you simply receive a standard ‘well done’ award, which you later throw away or use as a coffee coaster?

To find the answer to these questions we have to travel back to 1614 England. At this time, Mr Haynes stood trial for breaking into a graveyard and stealing winding sheets that bound the corpses of four people.1 Now, I realise this is disgusting but apparently the cloth was worth a lot of money in those days. Anyway, Mr Haynes was found guilty of petty larceny.

Interestingly, in the course of the Court proceedings the Judge found that a corpse was not capable of owning property.2 As such, the winding sheets could not be owned by the dead bodies. Somehow, this ruling has been interpreted or associated with the proposition that a corpse is not capable of being property3, rather than a corpse is not capable of owning property.

Despite the confusing background of where the rule came from, the rule has been around for more than three hundred years and has become an established and authoritative rule.4 As such, you can wave goodbye to your millions of dollars and say hello to your coffee coaster.

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Advance Care Directives Act: Is my Enduring Power of Guardianship still valid?

The short answer: Your Enduring Power of Guardianship may not be valid if it was made leading up to 1 July 2014.

Read on to understand why.

It’s often difficult to contemplate a situation where we lose mental capacity. It involves confronting that fundamental truth that we as people like to avoid: losing our autonomy. Fortunately, there are legal safeguards that people can put in place prior to this difficult time which will allow them to choose who will make important medical decisions for them.

Prior to 1 July 2014 a person could make an Anticipatory Direction, Medical Power of Attorney or Enduring Power of Guardianship to record their wishes about medical decisions. Then Parliament enacted the Advance Care Directives Act 2013 (SA). Now if someone wishes to record their directions as to health care and medical decisions they make an Advanced Care Directive and appoint Substitute Decision Makers. You are no longer able to make Enduring Powers of Guardianship or similar.

The Advance Care Directive must be in the pro-forma that the SA Government has created. It also must be properly signed and witnessed, must not be given by a person under coercion, and a person must have read and understood specific guidelines on what the Advance Care Directive is and its purpose before they sign.

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Changes to conveyancing laws in South Australia: What you need to know

 

Recently the Registrar-General of the Lands Titles Office introduced wide ranging reforms to how conveyancing is conducted in South Australia. These reforms are through the implementation of a compulsory “Verification of Identity” policy that applies to the majority of land transactions conducted after 28 April 2014 such as:

  • Transferring an estate or interest in land;

  • Mortgages;

  • A Transmission application (when executors apply to deal with the land in a deceased estate);

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Where there’s a will (or not) there’s a way

It can be difficult thinking about estate planning. However it’s one of those areas of life where planning ahead is essential. It can save you and your loved ones a whole lot of bother at a very difficult time. But what are the different options?

 

There are three legal documents that every person should have: a will, an enduring power of attorney, and an enduring power of guardianship. Most of you would be familiar with the function of a will – it disposes of your assets after you die to your nominated beneficiaries. An enduring power of attorney gives the person you nominate the power to make decisions about your finances. An enduring power of guardianship gives the person you nominate the power to make your medical decisions and decide where you live. The difference between an enduring power of attorney and a power of attorney is the enduring power of attorney continues to operate once you lose mental capacity. Similarly with an enduring power of guardianship.

 

But what if a person loses mental capacity and does not have a Will? In those circumstances an application can be made in the Supreme Court of South Australia for a statutory will.  The Supreme Court will look at what the person’s wishes would be if they had capacity, and make a will after reaching that decision. Any evidence as to what the person would want or wanted before they lost capacity is highly relevant. So too is evidence about the interests of family members or those who would have a right to claim on the person’s estate.

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Patrick dies in Offspring but what will follow?

I admit it. I watch the Channel 10 television drama Offspring.  Sad as it may be, it is one of the very few things I watch on tv and I watch it with my wife most weeks.  Last week Offspring delivered one of the most reported moments in recent Australian TV history, and if you haven’t heard what that moment was: Patrick died after being hit by a car in an accident that on face value appeared to be very minor. 

 

 

Patrick was the emotionally grounding partner of the ever erratic main character Nina.  He was an anaesthetist in his mid-30s, fit, healthy and expecting a child with Nina: circumstances that made his sudden death so sudden and all the more dramatic.  The episode sparked a huge response online via Facebook and Twitter with many posts including pictures of Patrick and “RIP”.   

 

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Separating: Why is it so hard and how can I make it easier?

Separating: Children, Divorce and Property. 

Separation is difficult. There are no two ways about it. The longer that you have been together with your partner the more likely it is that you have made a variety of joint commitments both personal and financial.  Dealing with these joint commitments at a time of emotional turmoil is very difficult for all clients. 

 

One of the most important things that you can do to make things easier is: stop and think. There are big issues to consider and negotiating back and forth with your ex to come to a ‘handshake’ agreement does not normally help.  Hopefully you can come to some understanding with respect to your children and maybe you both have a general idea about how to divide the asset.  However, these issues involve all of your children and all of your finances (including your superannuation): it is simply too risky not to get legal advice.  Even if you are happy to settle on the general basis that you have agreed with your partner, both of you will still need legal advice about what your rights are and more often than not a binding contract known as a binding financial agreement will need to be made.

 

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The 5 things you need to know to reduce your legal costs

 

Whether you are instructing a family lawyer about your divorce, organising your estate planning and an intricate will, or have been in a motor vehicle accident, there are some simple things that you can do to reduce your legal costs.

1 Read Your Costs Agreement

Often referred to by lawyers as your ‘terms of engagement’ or ‘cost retainer’, this agreement explains the relationship you have with your lawyer and how you are going to be charged.  It is important to understand this (and to get your lawyer to explain it to you if you don’t), because it is a blueprint for the future and will contain some estimations of the fees that will be charged by your lawyer.

2 Confide in your Lawyer

You will usually get a better outcome and at a lower cost if you are able to tell your lawyer all the facts you know at the beginning of a matter.  Don't try to do the lawyers job for them by providing only the part of the story that you believe is relevant.  Listen to your lawyer and provide as much detail as you can. Your lawyer will sort the wheat from the chaff. If you hide something from your lawyer it will only be to your detriment and in the end and could ruin any chance of success.

3 Provide all Documents

In most matters you will be asked to provide some documents, sign and return authorities and the terms of engagement.  Do this thoroughly at the beginning of a matter as it will keep your matter moving.  Momentum is important.

4 Use Email

Carefully use your email to contact your lawyer.  By writing out your instructions or a response you will naturally clarify your instructions or response.  Read the email before sending it.  Leave it for a couple of hours and come back to it and check that it provides the instructions and detail your lawyer is after.  If you have a document which 'backs up your story' attach it to the email.

An email will cost less for your lawyer to read than a phone call and generally is more informative.  You can also keep a copy of it.

5 Be Careful of your Expectations

Lawyers have many files at one time.  It is sometimes difficult for them to get the 'quiet time' they need to properly consider the legal issues to deal with your matter.  This can cause delay.  If you expect your lawyer to respond to you within a day and you contact them like you would call or sms a friend, then your costs are most probably going to go up.  Use your email to follow up with them.


Conclusion

If you use the steps above you will better positioned to get a better outcome at a lower cost.

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