Going into Partnership

going into a partnership

Are you considering a Business Partnership Agreement?

I have a friend who rather cynically says that, “a partnership is the only ship sure to sink”. Whilst I am confident that is not always the case, we certainly see enough partnerships that have sunk to know that it can be a mine field – which is why you need a legal business partnership agreement.

Most business partnerships seem to be forged between siblings and/or best friends; probably because there is a history between them going back a long way and there may well be a shared mutual love or enthusiasm for a particular interest which they believe they can turn into a profitable business.

My observations of partnerships that have gone wrong (due to a lack of a Business Partnership Agreement) are the following:

  • There is nothing worse than seeing two people who were once best friends become bitter enemies because of a failed business venture. You need to be very clear when going into business what roles and duties each of you are to perform and reduce that to writing so that you are both clear as to your position within the business. For most businesses to be successful there needs to be balance. Invariably one partner is good at the back end (Administration, financials, operations etc) and the other at the front end (Marketing, sales, public relations). When both partners are good at the one thing it often means that another part of the business is being neglected.
  • Make sure both of you are at risk financially should the business fail. There is nothing like having some ‘hurt money’ invested in the business to make sure everyone is focused on its success. Cases I see that are most prone to failure is where one partner has put up all the capital. This means he/she is the one who is up all night worrying and working around the clock to ensure the business stays on track.
  • Whether it is a partnership or a company, make sure the Business Partnership Agreement or Shareholders Agreement is in place to cover events such as one partner wishing to retire, death etc.
  • Often businesses start to fracture when one or both of the partner’s spouses get involved in the business. Have very clear ground rules concerning the involvement of family in the business.
  • Speak up – make sure you have open lines of communication so that if something is troubling you, you have a way to address this. An example may be a meeting at a coffee shop once a month to discuss the business and raise any concerns either partner may have about the business or performance of the other partner. All too often such emotions arise where one partner will become annoyed and frustrated at the conduct or lack of performance from the other partner, but does not say anything, preferring just to sit on it and stew until it reaches boiling point. Then things are said in the heat of the moment and can put tremendous pressure on partnerships.

My advice to people going into partnership is to look carefully at the person you are going into partnership with, look at their strengths and weaknesses and whether they compliment yours and are you prepared to lose their friendship in the event that things go bad.

The Importance of Having a Will

importance of having a will

It never ceases to amaze me the number of people who don’t have a Will or if they do have one it is grossly outdated and does not reflect their current circumstances.

The bottom line is that everybody from the age of eighteen (18) should have a Will and that Will should be reviewed regularly to ensure that it keeps up with your changing circumstances.

But first, lets go back to basics. What is a Will? A Will is a legal document that enables a specified person or persons (your Executors) to distribute your assets according to your wishes when you die. Your assets include your house, land, car, bank accounts, insurance/superannuation policies and any other goods that you may own at the time of your death.

Your Will sets out which asset goes to which “beneficiary”. Beneficiaries can be family members, friends, charities or other organisations. If you have a young family, your Will can also state who is to be the legal guardian of your children in the event that they are left without a parent.

For the time being, keep this in mind, if you don’t have a Will then you don’t have a say in how your assets will be distributed or who will administer your estate for you. That will be done by the Government adhering to a rigid formula.

If you don’t have a Will or you need to review your existing one, please don’t hesitate to contact us.

Do Grandparents Have Rights

do grandparents have rights

 

Frequently in today’s busy society, grandparents are being called upon to spend their retirement years assisting in the care of their grandchildren, especially where both parents are working. A strong bond between grandparents and grandchildren ensues as grandparents invest their time in the important role of nurturing and developing their grandchildren when their parents are at work. When a divorce fractures a family unit often the bond between grandparents and grandchildren is overlooked.

Often grandparents suffer the heartbreak of their child’s divorce, not only because heir child is in pain, but because they find that they can be cut off from contact with their grandchildren, especially where the divorce is bitter and hostile.  This is traumatic to both the grandparents and the grandchildren. This is particularly relevant where, for example, the father’s parents have been caring for the children but after separation the mother refuses to allow them access to the children or vice versa.

What can grandparents do in this situation? The Family Law Act recognises that the best interests of the children are a paramount consideration when determining who they shall live with and spend time with. A fundamental factor in this is the role that a grandparent can play in the care and development of their grandchildren and the strong attachment they may have with each other. The law recognises that families are unique and that persons, other than parents, can also provided a significant role in the upbringing of children.

Each matter is judged on its own particular set of circumstances and merit. Grandparents have the right under the Family Law Act to bring an Application to the Court and be heard on the issue of contact with their grandchildren.  If a Judge determines that it is in the best interest of the grandchildren that they would be well served by spending time with their grandparents then the Court will make an order to facilitate this contact.

However, Court should only be viewed as a last resort as it is expensive and can lead to the exponentiation of conflict and create more bad blood between waring partners. An alternative to Court is mediation or negotiation with a view that an agreement can be reached between the parents and grandparents regarding the ongoing contact grandparents are to have with their grandchildren.

Seeing Your Children This Christmas

Seeing your children this christmas

The festive season should be a time of fun and togetherness. Unfortunately it often turns into a nightmare for parents who are separated especially in regards to spending time with their children.

If you and your ex are in dispute you are often left asking these questions:

• Will I get to see the children during the holidays?
• How long will I have them for?
• Can the children and I have Christmas together?
• Will they be able to spend time with my extended family?

So what are your options:

1. SEE A SOLICITOR

It is advisable to consult a Solicitor at the outset in order to look at your options and be informed of your rights. A solicitor can guide you through the entire process and try to make it as simple and seamless as possible.

2. MEDIATION

The Court encourages parents to try and resolve these issues between themselves. Couples are often required to attend mediation with a positive view to resolving the matter. A genuine attempt needs to be made to deal with any issues.

It is imperative to keep the best interest of the child or children always in the forefront and be able to look past individual grievances so as to reach a solution and resolve issues as swiftly, smoothly and seamlessly as possible.

In many situations a person might be exempt from attending mediation if the matter at hand is urgent, or where a parent is unable to participate due to an incapacity or lack or physical proximity or if there are concerns in regards to the risk of child abuse or family violence, or if there is an alleged contravention of an Order made within the last 12 months.

3. COURTS

If an Agreement cannot be reached or time does not permit, the Court can be approached as a last resort. If however an Agreement is reached your Solicitor can help draft the terms of an agreement in the form of Consent Orders and lodge them on your behalf with the Court.
You do not have to face this stressful time alone. We at McLaughlin & Associates are here to provide you with the help, support and guidance so that you do get to spend time with your children these holidays.

Why Have a Power of Attorney?

enduring power of attorney

 

What is Probate and how does this relate to a Power of Attorney?

What is Probate? This isn’t always required but essentially, it’s when the Supreme Court recognises that a Will is valid. As you will see below however, Power of Attorney is totally different and in fact, ends upon death.

We have found that many people believe that a spouse (whether married or de facto) is able make decisions on behalf of their partner, as a matter of right, due to their relationship.

This is simply not the case.

The decision making process is solely within the purview of each individual person and is generally only able to be transferred to another when a person enters into a Power of Attorney document.

When a person (known as the Principal) enters into a Power Attorney document they are, in effect, transferring their power to another person (known as the Attorney).

It is the transfer of this personal power which permits an Attorney to make decisions for and/or act in the place of the Principal. The types of decisions that an Attorney can make are broad ranging, from financial matters, such as selling a house, taking care of the finances to personal/heath matters such as deciding about where a person will live. A Principal can also limit an Attorney’s power, should they wish to do so, or expand upon it to allow the Attorney to enter into conflict transactions. This is particularly relevant where an Husband/Wife has been appointed as an Attorney.

Where an Attorney has also been appointed to make decisions regarding Personal/Heath matters, this power only commences when the Principal has lost his or her mental capacity.

Having a valid power of attorney is beneficial for a number of reasons, such as:-

  • older people are able to appoint the person they want to take care of things
    for them should s/he not be able to do so in the future;
  • going overseas for an extended time, and want a person in Australia to take
    care of things;
  • where a person suffers poor heath and wants to ensure that their affairs
    are in order should they lose capacity.

Powers of Attorney documents are also beneficial should you have an accident and lose your mental capacity.  In this instance, should you not have a Power of Attorney, a relative would need to apply to the Tribunal to be appointed as your Guardian and Administrator.  This can be a lengthy process and it may be that necessary a government body would have to look after you/your affairs until any other appointment has been made.

There are two types of Power of Attorney Documents, being:-

  • A General Power of Attorney – this type of document is generally only used when a Principal wants their Attorney to operate on their behalf for specific transaction.  These types of transactions are generally involve commercial transactions and do not permit the attorney to make decision for the health care of the principal.
  • An Enduring Power of Attorney – this type of document is generally used when a Principal wants to ensure that the Attorney can act on their behalf for a full range of financial matters, and also assist the Principal should he or she need assistance in Personal/Health Matters upon the loss of mental capacity. However the primary difference between these two types of documents is that the power provided under a General Power of Attorney will end on when the Principal losing his or her mental capacity whereas the Enduring Power of Attorney will continue to remain in full force and effect.

When appointing an Attorney, the Principal should appointment a person whom they trust will act in their best interests.  There are also other requirements, such as your attorney not being your paid carer or health care provider.

Problems can occur if the Power of Attorney document has not been completed correctly or it not been witnessed correctly.

A witness’s duty extends further than merely witnessing the Principal’s signature. The witness must also judge whether or not the Principal understands the nature and effect of the Power they are providing.

If not, then the power of attorney can be challenged by any interest party.

Therefore, it is important that if you are considering providing this Power to another person, that you be properly informed, by a legal practitioner, as to the nature and effect of the Powers you are providing to another person(s) under the Power of Attorney document.

If you are still asking yourself – What is Probate? – check out our document of Technical Details.

Video

Prefer to watch a video? Our principal, John McLaughlin, provides an informative Law Talk episode about the Enduring Powers of Attorney