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How can HALC help?
Some of the areas that HALC can help with include:
- Making a will
Making a Will
A will is a legal document that lets you make provision for what will happen to your possessions after you die. If you pass away without making a will, then the law will distribute your property on your behalf which may not be in accordance with how you would like your property distributed. One example is same-sex partners who may or may not be entitled to any property if there is no will (depending on how long you have been partners and whether you live together). For more information about making a will click here.
- Powers of attorney
Power of Attorney (POA)
A power of attorney is a document that gives someone else (“the attorney”) the power make legal decisions in your name. For instance, these powers can include such functions as managing your money, paying bills and making decisions in relation to any property you may have. Most POA documents will become invalid if the appointer loses mental capacity or dies. However, if the POA is expressed to be an enduring POA this means that it lasts past personal capacity and will continue to be valid even if the appointer loses mental capacity or dies. For more information on POAs click here.
- Enduring Guardianships
Enduring Guardianships
and Living Wills
An enduring guardianship is a document which grants someone (‘the guardian’) the legal right to make lifestyle and medical decisions on your behalf in case you lose the capacity to make these decisions for yourself. You can give your enduring guardian the power to make as many or as few decisions as you like, and also directions on how to make those decisions. The person you wish to appoint must agree to be appointed as your guardian before the document is valid. For more information on Enduring Guardianships, click here.
A Living Will is a document designed to do a similar job as an Enduring Guardianship. A Living Will has no legislative force, which means it is not binding. Living Wills were popular before Enduring Guardianships came into being. Generally clients now draft Enduring Guardianships because they are binding, but if you want to know more about Living Wills, please call HALC.
- Medical Treatment Issues
Medical Treatment Issues
Medical practitioners providing medical services have a duty to provide those services in an appropriate way. You may be able to complain about the behaviour of a medical practitioner that does not provide proper service. A complaint may be made to the Health Care Complaints Commission (HCCC). Generally, complaints to the HCCC must be brought within 5 years of the date of the circumstances giving rise to the complaint.
In some circumstances the standard of care may be so bad as to amount to negligence. Negligence is a legal term where someone fails to provide reasonable care, and, as a result of that failure, you suffer loss or damage.
If you have attended a medical practitioner or medical service and been treated in a manner that you think is not appropriate, you should contact HALC, or seek legal advice elsewhere, to determine what may be the best way to pursue the matter, depending on the individual circumstances.
In addition, there are some more specific duties that medical practitioners owe to people living with HIV/AIDS –
- Confidentiality – medical practitioners must maintain a patient’s confidentiality about their HIV status by law. Practitioners are required to take special precautions to prevent a patient’s identity being disclosed on test results. Failure to do so may be an offence.
- Testing – medical practitioners cannot test for HIV without a patient’s consent. Where testing occurs, practitioners are required by law to provide adequate counselling before and after testing.
DISCLOSURE & CONFIDENTIALITY
Confidentiality is particularly important for people living with HIV because of the stigma attached to the condition in some circles and the possibility of discrimination if a person’s HIV status is disclosed. Service providers are required by law to take all reasonable steps to prevent disclosing a person’s HIV status to any other person. Some exceptions do apply to this requirement.
There are also issues to bear in mind if you choose to disclose your HIV status to certain people.
For more information on disclosure and breaches of confidentiality, click here.
- Discrimination
and Vilification
Discrimination and Vilification
In some circumstances, it is illegal to discriminate against someone on the basis of their HIV status (or their perceived HIV status). Circumstances in which discrimination is illegal can include employment and the provision of services. Complaints of discrimination can be brought to the Anti-Discrimination Board (A-DB), or the Human Rights and Equal Opportunities Commission (HREOC). Complaints must be brought within 6 months from the date on which the discrimination occurred at the A-DB, and within 12 months at the HREOC.
If someone discriminates against you in a public way that is designed to ridicule you, it may amount to vilification.
You should seek legal advice or call the A-DB if you think you may have been discriminated against. You should discuss whether the actions amount to discrimination or vilification, and whether it is better to lodge a complaint with the A-DB or the HREOC. To find out more about discrimination, click here.
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Employment
Employment
HIV can impact on several areas of employment, such as disclosure, unfair dismissal and discrimination. Generally speaking, an employer cannot require you to disclose your HIV status for any reason except in certain limited circumstances. In most circumstances it is also illegal to dismiss someone from employment or to treat them differently from other employees solely on the basis of their HIV status, or as a result of them having to take time off work due to their health. Employment issues can be complicated and are largely determined on the facts in each particular case. If you have a legal question in relation to employment please contact HALC.
- Immigration
Immigration
People who wish to apply for permanent, or in some cases temporary, entry to Australia are subject to mandatory health testing. Part of this testing includes a test for HIV. Generally, if an applicant tests positive, they will fail the health requirements. People applying for visas on the grounds of spousal or de facto spousal relationships, interdependency partnerships, fiancé relationships or dependent or adopted children, may be able to have the health requirement waived.
The advice given to a person with HIV who is applying for a visa will vary greatly depending on the type of visa that is being applied for, and the health test that is applied to that visa. HALC has Registered Migration Agents and can answer migration questions. HALC also represents clients who are seeking a ‘health waiver’ at the Migration Review Tribunal (MRT). This area of immigration is extremely complex, and any immigration enquiries should be directed to a Registered Migration Agent.
The Migration Agents Registration Authority (MARA) is responsible for monitoring the registration and conduct of migration agants in Australia. All migration agents must comply with:
Immigration Agent Registrations:
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| David Nicholas Puls |
MARN 0533088 |
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Superannuation and Insurance
- Disclosure & Confidentiality
- Tenancy Disputes
- Social Security
- Debt
You can click on the headings above for more information.
Superannuation and Insurance
In most circumstances the law does not allow you access to your superannuation until you reach age 55. However, in some circumstances, people living with HIV/AIDS can gain early access to their superannuation. There are three ways this can be done: on the grounds of total and permanent disability, financial hardship or on compassionate grounds. Superannuation companies will require evidence that you fit within their prescribed criteria for these grounds. For more information about superannuation click here.
Some types of insurance will cover people living with HIV, however some insurance providers are allowed by law to decide not to cover HIV or AIDS-related claims. Whether you are required by law to disclose your HIV status to an insurance company when applying for insurance, and whether your insurance company is required to cover you, will depend on the type of insurance you have, the policy and the circumstances under which you applied. For more information about insurance click here.
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