TERMS OF ENGAGEMENT (ESTATE PLANNING)

The following terms apply to all estate planning clients within South Australia.

1. Introduction

We confirm that you wish for us to act for you in a South Australian estate planning matter.

We are prepared to accept act for you in this matter upon your agreement to the following terms.

2. Scope of the Legal Work

2.1 You have instructed us to act on your behalf with respect to your estate planning matter for the scope of legal work which includes:

• 1 x partner telephone consultation offering complex advice;
• 2 x appointments with legal team to complete intricate package;
• Intricate will and safe custody;
• List of sensitive information (e.g., passwords) with safe custody;
• Power of Attorney
• Advanced Care Directive
• As required: Binding nominations, statutory declarations, testamentary trusts, special disability trusts and/or complex clauses.

2.2 We will accept instructions from you and advising you.

2.3 We rely on the information that you provide.  It is important that this information is correct.  We will do further searches, of certificate of titles or companies, if you agree for us to do so but this would require your further instructions and come at an additional cost.  You agree to proceed on the basis that you are providing accurate information about your personal details including you assets and liabilities including mode of holding.

3. Doing the Work

As previously advised, you have a primary legal practitioner responsible for and in control of this matter. This legal practitioner is also the person whom you may contact with regard to legal costs.  However there may be changes of legal practitioner responsible over time (which will be notified to you) and other legal practitioners or legal staff may work on the matter from time to time as we consider necessary.

4. Fees

5. Disbursements

5.1 As previously advised, in addition to our fees we charge you for the out of pocket expenses incurred or paid on your behalf (called disbursements).

5.2 Out of pocket expenses incurred by us such as fees of barristers, agents, Government and local authorities fees, STD, international calls and couriers are charged at the cost to us. We do not charge for mobile or local telephone calls.

5.3 Should we see a need to incur expenses on your behalf which are unusual as to their nature or extent, we will provide you with advice and seek your specific instructions before incurring such expenses.

5.4 Disbursements are incurred by us as your agent. In the event that the disbursement is subject to GST you will be required to pay the GST.

6. Goods and Services Tax (‘GST’)

Our fees are subject to GST. Under these Terms the amounts or rates quoted for fees are inclusive of GST.

It is a term of this engagement that you, as client, pay not only our fee/s but any GST in respect of the fee/s.

To the extent that disbursements we incur for you or on your behalf are subject to GST, GST will also be payable by you in respect of those disbursements.

It is a term of this engagement that you, as client, pay not only the disbursements, but that you pay or reimburse us for any GST paid or payable in respect of the disbursements.

7. Legal Costs – Your Right to Know

You have the right to:

• negotiate a costs agreement with us;
• receive a bill of costs from us;
• request an itemised bill of costs after you receive a lump sum bill from us;
• request written reports about the progress of your matter and the costs incurred in your matter;
• apply for costs to be adjudicated within 6 months if you are unhappy with our costs;
• apply for the costs agreement to be set aside;
• make a complaint to the Legal Profession Conduct Commissioner (if you believe there has been overcharging);
• accept or reject any offer we make for an interstate costs law to apply to your matter;
• notify us that you require an interstate costs law to apply to your matter.

For more information about your rights, please read the fact sheet titled Legal Costs—your right to know. You can ask us for a copy or obtain it from the Law Society of South Australia (or download it from their website).

8. Updating of Advice 

You have the right under clause 17 of Schedule 3 of the Legal Practitioners Act to be notified of any substantial change to the matters to be disclosed to you under clause 10 of Schedule 3, including any substantial change to the estimated costs of work.

9. Billing

9.1 We are entitled to bill you on an interim basis, provided that no bill is to be delivered less than twenty-one days after the delivery of a previous bill, and where there is money in the estate’s trust account those bills will be paid from the trust monies after 7 days.

9.2 Accounts are to be paid within seven (7) days after delivery. Interest at the rate of [4.5%] per annum which is the Cash Rate Target as of the date the bill is issued plus 2%.  Interest begins to run on our accounts once they have remained unpaid for thirty (30) days and shall be compounding and calculated on a daily basis.  If an account does remain unpaid after seven (7) days after delivery, we may terminate the engagement.

9.3 The following avenues are available to you if you are not happy with a bill from us:

• requesting an itemised bill;
• discussing your concerns with us;
• having our costs adjudicated;
• applying to set aside our cost agreement;
• making a complaint to the Legal Profession Conduct Commissioner (if you believe there has been overcharging).

For more information about your rights, please read the fact sheet titled Your Right to Challenge Legal Costs.  You can ask us for a copy, or obtain it from the Law Society of South Australia (or download it from their website).

10. No Apportionment of Liability

Where we act for two or more people or entities in a matter, each of you will be individually responsible for payment of our entire account whatever arrangements may be made between you.  You agree that you are personally liable for our costs and disbursements even if the matter involves our acting for other persons and/or organisations.  If you provide us with instructions for or on behalf of a third party or jointly with another party, you will be personally liable to pay for our services in accordance with these terms of engagement, irrespective of the liability of any third or other party to pay our fees.

11. Termination

11.1. You have the right to terminate our services at any time.

11.2. Upon good cause such as failure to comply with the terms of this agreement or if in our view the necessary relationship of confidence no longer exists between us we have a right upon reasonable notice to terminate our engagement and cease acting for you, and in litigation matters apply to be removed from the Court file as your legal practitioners.

11.3. All fees and expenses incurred prior to termination by either you or us are then immediately billable to you.

11.4. Subject to any Court order to the contrary or consequent agreement to the contrary, you agree that we are entitled to retain all moneys, papers and records relating to this matter until our bills are paid.

12. Conflicts of Interest

We will not intentionally become involved in a situation where there is a conflict of interest of a legal nature between you, us and/or another client but if through inadvertence or unforeseen circumstances this should occur we may be obliged to terminate the engagement in this matter.

13. Storage of Records

13.1 We operate an electronic filing system. We do not store paper records for the majority of your documents.  In most cases we will scan your documents and give them back to you.

13.2 Your privacy is important to us. Boylan Lawyers (Boylan’s) privacy policy is framed in the context the Privacy Act 1988 and the Australian Privacy Principles contained therein.  Boylan’s collects personal information in the provision of legal services. The purpose of collection of this personal information is to enable Boylan’s staff to provide legal services.   In all cases, the consent of the client about supplying information is required. Confirmation of consent may be evidenced by the provision of a terms of engagement or instruction booklet signed by the client to whom the information relates.

13.3 We store your files for seven (7) years after completion of the matter. We do not charge for this storage but if you require us to retrieve anything stored by us after completion of the matter, you agree that we will charge you a reasonable fee for that service. You authorise us to destroy any of your files retained by us after seven (7) years following the completion of the matter. We encourage you to collect your file from us for your own records within seven (7) years after completion of the work.

13.4 All reasonable steps must be taken to keep personal information confidential, destroy or de-identify personal information if it is no longer needed for any purpose for which the information may be used or disclosed. The information obtained cannot be disclosed to any other person without the client’s consent being provided in the terms of engagement or through their instructions.

13.5 Boylan’s staff members are trained to maintain professional standards of confidentiality in their contact with clients, barristers and other professionals. Boylan’s has a policy of requiring staff to sign confidentiality agreements re the non-disclosure of personal information of clients. This is in addition to the staff being bound by the professional conduct rules.

13.6 Files are available only to staff members who have a need to use them for the purpose of providing the legal service. Computer data bases containing information are protected by passwords known only to Boylan’s staff. Boylan’s collect electronic data containing matter documents, such as; correspondence, statements, Court Documents, file notes, terms of engagement, client authorities and other documents relating to a specific matter.  Where this data is cloud hosted, the cloud hosting services are to be provided in Australia.  Boylan’s also collect electronic data containing client contact information, such as; name, address, email, phone number and other contact information.  Where this data is cloud hosted it may be hosted in Australia or overseas.  Whether data is hosted in Australia or Overseas through a cloud hosting provider, all reasonable steps will be taken to ensure the information is appropriately protected. Emailed information is handled confidentially according to Boylan’s policy and procedures.

13.7 Personal information held by Boylan’s has been provided, with consent, by clients themselves or referrers on their behalf. A client may have access to his/her personal details which are held in his/her own personal record in accord with the provisions of the Australian Privacy Principles. Information to be provided to client must be provided to him/her personally after it has been clearly established that he/she is the person about whom the information is requested.  If a client considers that Boylan’s has breached his/her privacy or this policy, he/she may complain to the Managing Partner.

14. Your Agreement to Work with Us

It is a term of this agreement that you will reply to correspondence, return phone calls, respond reasonably to requests for instructions, information and documents, and pay accounts or pay money into trust when reasonably required.  If you do not work with us in these ways, then we may terminate this agreement.  In such circumstances, you agree that you will file a notice of acting in person in any current court proceedings in which we have been acting for you.

15. Authorisation

It is a term of the engagement that should we receive any money from you or on your behalf other than for a specified purpose, we are at liberty to apply that money in payment of our outstanding accounts if nothing has been heard from you disputing the accounts within 7 days after delivery.

16. Copyright

We own the copyright in all documents we author in supplying our services and you have the right to use those documents only for the purposes for which they are supplied.

20. Applicable law

These Terms are governed by South Australian law.  All parties consent to the non-exclusive jurisdiction of the courts of South Australia with regard to any dispute arising under or out of them.

21. Your Agreement to These Terms

21.1 Please contact Boylan Lawyers if there is anything in these Terms which you do not understand or with which you disagree. You are also entitled to seek independent legal advice on the contents of the above Terms.