AUSTRALIA Law and Practice Contributed by: William Moore, Frank Hinoporos, Emma Woolley and Todd Bromwich, Hall & Wilcox
cession planning documents, to facilitate ongoing management of the company should the individual lose capacity. 8.4 Elder Law Laws relating to capacity and decision-making have changed in recent years, with increased focus on the wishes of the individual and ensuring their involve - ment in decision-making processes. Longevity and age-related cognitive issues are driving increased attention to care and accommodation deci - sions. This has led to changes in power of attorney legislation to provide for assisted decision-making, advanced care directives and voluntary assisted dying laws in most states and territories. Increased awareness of elder abuse has led to pen - alty and compensation provisions in power of attorney legislation, making it easier to take action against an attorney who abuses their position, including criminal penalties. 9. Planning for Non-Traditional Families 9.1 Children Under the Family Law Act, a child may have up to two legal parents, and only those recognised as legal par - ents hold parental responsibility. The legal recognition of parentage determines a child’s rights in succession, nationality and child support. Children Born Outside of Marriage The distinction in succession law between children born within marriage and those born outside it was abolished through legislative reforms in the mid- 1970s. Today, children born out of wedlock are treat - ed equally under the law and hold the same rights to inherit from their parents’ estates, regardless of the marital status of the parents at the time of birth. If a parent dies intestate, children born outside of marriage are entitled to a share of the estate under the relevant jurisdiction’s intestacy laws. The laws of most Australian states and territories provide that a reference to a child or children in a Will includes ex-
nuptial children, provided the person in question is their natural parent. However, practitioners should be mindful of the com - mencement dates of the relevant statutes and the date of birth of the child when determining whether a child born outside the marriage would be recognised under a Will. For example, in the state of New South Wales, Section 6 of the Status of Children Act 1996 (NSW) specifies that the legislation applies to disposi - tions made on or after 1 July 1977. This means that if a Will was created before 1 July 1977 and refers to “children” without further clarification, the law at that time may have excluded children born outside of mar - riage from benefiting. Adopted Children Adoption confers full legal parentage on the adop - tive parents, severing the legal ties between the child and their biological parents. An adopted child has the same inheritance rights as a naturally born child of the adoptive parents, including inclusion in any class of beneficiaries defined by reference to children. Con - versely, the adopted child no longer retains inherit - ance rights from their birth parents. Children Born by Artificial Insemination Legislation across Australia recognises children con - ceived through artificial insemination or other assisted reproductive technologies as the legal children of the consenting parents. If a child is born through an artificial conception proce - dure, and the woman and her spouse consented, the child is deemed to be their child for all legal purposes, including inheritance rights under intestacy laws and eligibility for gifts in Wills or family provision claims. An anonymous sperm donor does not have parent - age rights to a child born as a consequence of their donation, and the child born does not have claims on the donor’s estate. Surrogacy Arrangements Surrogacy is permitted in Australia on an altruistic (non-commercial) basis. The surrogate is the legal parent at birth. To transfer legal parentage, the intend - ed parents must obtain a parentage order from the
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