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    • Medical Negligence
    • Women’s Health
          • Women’s Health

            We know that there is disparity in women’s health care, treatment, and support. We are committed to improving the lives of women and strongly advocating for their wellbeing.  That is why we take a stand and hold medical professionals accountable when medical care falls short of expected standards by delivering the best outcome in medical negligence claims affecting women.

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    • Hospital Negligence
          • Hospital Negligence

            We understand you may feel let down because you have experienced inadequate or negligent care and treatment in a hospital or medical facility. Your wellbeing is most important to us and we are committed to supporting you with compassion and holding medical professionals accountable for breach of duty and negligent care.

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    • Clinical Support
          • Clinical Support

            Experiencing poor or adverse outcomes from allied health treatment can be distressing and life changing. We are here to support you through your claim and it is our aim to hold allied health professionals accountable for their breach of care by delivering the outcome you deserve to your negligence claims.

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            Hello, I’m Jade. I’m here to help you with a quick discovery call that will help us better understand your legal concerns. This way, I can connect you with the lawyer who is best suited to assist you with your situation.

            Your well-being is important to us, and we’re here to support you every step of the way.

            Call me on 02 4050 0330 or email admin@conradcurrylaw.com.au

    • Personal Injury
          • Personal Injury

            If you have been injured because of someone else’s negligence, our specialist team of Personal Injury Lawyers is here to support you with compassion and understanding providing you with the right advice. Our team has substantial experience and expertise in these matters to deliver the outcomes you deserve from your claim.

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          • Motor Vehicle Accidents

            We are here to support you and give you the clarity, guidance and the right legal advice if you have been injured in a motor vehicle accident. Our compassionate team of professionals in Personal Injury law have the technical expertise and a wealth of experience to win you the compensation you deserve.

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    • Public Liability
          • Public Liability

            Our specialist team in Personal Injury law is here to support you in accessing proper compensation if you have been injured because of someone else’s negligence. We have cutting edge expertise and experience in public liability claims to deliver the outcome you deserve.

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    • Abuse
          • Institutional Abuse

            We strongly believe that educational institutions must be held accountable when failing to protect children while in their care. If you have experienced institutional physical or sexual abuse, our specialist team in Personal Injury law is here to support you with compassion and offer our technical expertise and experience to deliver the best outcome in your case.

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    • Workers Compensation
          • Workers Compensation

            When you sustain an injury or illness because of work, you may be entitled to  compensation. Our specialist team in Personal Injury Law is here to support you with compassion and understanding with the right advice. We have substantial technical expertise to deliver the best possible outcome from your claim.

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    • I Need Help
          • Not Sure where to start?

            Hello, I’m Jade. I’m here to help you with a quick discovery call that will help us better understand your legal concerns. This way, I can connect you with the lawyer who is best suited to assist you with your situation.

            Your well-being is important to us, and we’re here to support you every step of the way.

            Call me on 02 4050 0330 or email admin@conradcurrylaw.com.au

    • Wills & Estate Planning
          • Wills and Estates

            When we provide advice on estate planning, we believe  in giving advice on options to mitigate the risks of litigation by potentially unhappy family members and protecting your assets from claims. Our legal team is here to support you and address your concerns regarding your estate planning. We have immense experience in these matters, providing you with advice and representation for your unique situation and delivering the best outcomes for your case.

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    • Powers of Attorney
    • Contest A Will
          • Contest A Will

            We have immense experience and specialised knowledge in family provision and wills disputes Where you have not been properly and adequately provided for under a will or where you suspect that the person making the will may not have had capacity or exercised their own free will, you need a lawyer with extensive experience and expertise. Our team of Lawyers will  provide you with advice and representation for your unique situation and deliver the best outcomes for your case.

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    • Probate & Deceased Estates
    • Enduring Guardian
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            Hello, I’m Jade. I’m here to help you with a quick discovery call that will help us better understand your legal concerns. This way, I can connect you with the lawyer who is best suited to assist you with your situation.

            Your well-being is important to us, and we’re here to support you every step of the way.

            Call me on 02 4050 0330 or email admin@conradcurrylaw.com.au

    • Other Services Overview
          • Conrad Curry Can assist you with a variety of services

            Our solicitors are highly experienced in providing you with expert legal advice and will keep you informed every step of the way. It’s good to know that our firm is trusted and effective with a high success rate.

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    • Professional Negligence
          • Professional Negligence

            We rely on professionals in all aspects of our lives to provide us with proper advice on which to make decisions about our financial and legal affairs. When you are let down by poor advice the results can be devastating.  We are here to support you in your claim for compensation with clarity, guidance and the right advice to achieve the outcome you deserve.

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    • Malicious Prosecution
          • Malicious Prosecution

            We believe in standing up for those people who are falsely accused and prosecuted. Our experienced legal team is here to support you with compassion and provide you with clarity, guidance, and the right advice in your claim for compensation.

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    • General Litigation
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            Hello, I’m Jade. I’m here to help you with a quick discovery call that will help us better understand your legal concerns. This way, I can connect you with the lawyer who is best suited to assist you with your situation.

            Your well-being is important to us, and we’re here to support you every step of the way.

            Call me on 02 4050 0330 or email admin@conradcurrylaw.com.au

    • What to Expect
          • What to expect

            We are your law firm for life. You can count on us for the best legal advice and compassionate support. We understand the challenges you are facing and we want you to know that you don’t have to navigate the often daunting process alone. We are here when you need us. Let us help you find your way forward with our empathetic and efficient approach. Contact us. You can call us on (02) 4050 0330 for a free initial no-obligation consultation or book an appointment online for an in-person consultation or an online video appointment.

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Superannuation – crucial issues around the Binding Death Benefit Nomination

So what is a Binding Death Benefit nomination (BDBN) and why should we care?

Essentially, a BDBN, or binding death benefit nomination, is a written direction to your superannuation fund that instructs the fund as to whom to pay your death benefit and how it should be paid when you die.

Regulation 6.17A of the Superannuation Industry (Supervision) Regulations 1994 (Cth) sets out the requirements in relation to Binding Death Benefit Nominations, including that:

  • nominated recipients of the benefit must be either your legal personal representative or one of your dependants.
  • Binding Death Benefit Nominations cease to have effect, or expire, after a maximum period of three years at which point they may be confirmed for another three year period.
  • in order to confirm, amend or revoke a Binding Death Benefit Nomination, you need to provide a notice to your fund in writing. That notice must be signed and dated by you in the presence of two witnesses, neither of whom is mentioned in the notice as a nominated recipient.

Importantly, where your Binding Death Benefit Nomination instructs payment to a dependent, those funds do not automatically form part of your estate. As such, taking a strategic approach to nominating recipients of your death benefit can reap valuable benefits, especially taking into account implications concerning taxation and creditors’ claims. Likewise, if you have made a BDBN but it has lapsed at the time of your death, the consequences can be significant since decisions concerning the distribution of your death benefit funds would then typically fall to your super fund.  As noted by the Australian Law Reform Commission (ALRC) in its 2017 report, Elder Abuse – A National Legal Response (ALRC Report 131), where a BDBN is not confirmed and extended prior to a person’s death, the relevant funds may be distributed:

  • in a way that the member had not intended;
  • in a manner less ideal for tax purposes when compared with the lapsed binding death nomination; or
  • in a manner that results in the funds forming part of the estate of the member which may be subject to certain creditors’ claims.

So what happens if, at the time your Binding Death Benefit nomination has expired, you have lost mental capacity – Who has the power to confirm and extend your BDBN on your behalf and does that person/s also have the power to amend or revoke your BDBN?

Whilst it may seem obvious that such power would likely be in the hands of the person/s to whom you have granted an enduring power of attorney, ALRC Report 131 draws attention to the fact that this remains a murky area of the law as there is no clear guidance in the relevant legislation and, at the time the report was released, the matter had not been tested in the courts nor in the relevant tribunal, the Superannuation Complaints Tribunal (SCT):

“In Determination D07–08\030, the SCT stated that, in principle, an enduring power of attorney would permit an attorney to complete and sign a BDBN on behalf of the member. As the Tribunal did not decide the matter on the basis of the binding nomination, however, its comments are not of direct application. Hence, the Law Council of Australia observed that ‘[w]hether the scope of an attorney’s authority extends to making a nomination remains a matter of debate’”

One of the contentious aspects of the debate revolves around the fact that testamentary decisions and actions such as creating or amending a person’s will cannot be performed under an enduring power of attorney. Whilst a BDBN is not strictly considered a testamentary tool, both the Law Council of Australia and the ALRC take the position that BDBNs are “will-like in nature and they should be treated in policy terms ‘similarly to wills’”.

Recently, however, the Queensland Supreme Court held that two attorneys acting under an enduring power had validly exercised their power by confirming and extending for a further 3 years a BDBN made by a member of a self-managed superannuation fund.  Importantly, since the attorneys in that instance merely confirmed the nomination previously made by the member himself, it was deemed that such a transaction was not one “in which there is, or may be, a conflict between the duty of the attorney towards the principal, and the interests of the attorney.”

Yet, in that same case (Re Narumon Pty Ltd [2018] QSC 185), it was held that another BDBN made by the same two attorneys which varied the member’s original nomination was not a valid exercise of the enduring power of attorney. In the circumstances, the member whom the attorneys acted for had invalidly nominated that a 5% distribution go to one the two attorneys (the member’s sister) who was not a dependent of the member. The attorneys attempted to overcome this problem by amending the BDBN such that the 5% distribution due to the sister was added instead to the percentage due to the other attorney who was the member’s wife and thus a valid nominee. Although such variance was expressly approved by both attorneys, it nevertheless conflicted with the member’s original nomination and served to benefit one of the attorneys. As a result of the amended BDBN being held invalid, the 5% share due to an invalid nominee fell to be dealt with by the trustee of the super fund in accordance with the relevant trust deed.

Whilst the law concerning powers of attorney in NSW differs slightly from the relevant law in Queensland, Jen McMillan (Legal Practice Consultant, Lawcover) suggests that the amended BDBN would not be authorised under the law in NSW either. She notes, however, that it remains to be seen whether Re Narumon Pty Ltd will be followed in NSW.  In the latest edition of the NSW Law Society Journal, Ms McMillan published the following recommendations for drafting enduring powers of attorney:

  1. Ask your principal client whether he or she would want their attorney to be able to confirm, make, or revoke a Binding Death Benefit Nomination.
  2. If the principal does not want the attorney to have this power, include an express limitation in the instrument to that effect.
  3. If the principal does want the attorney to have this power it would be prudent to include an express authority to that effect in the power of attorney.
  4. A principal may wish to give this power to on but not all attorneys in an instrument (eg while the spouse may have this authority, the child who is substitute attorney may not). If this is the case, care needs to be taken to draft the power of attorney to make it clear who is authorised and who is not.

Contact us here at the Law office of Conrad Curry to ensure that your powers of attorney are drafted or updated in a manner consistent with the current state of the legal landscape.

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