Defence Determination 2011/34, Financial support for
legal or financial advice on death of a member
I, PETER ARTHUR ELLIS BAVINGTON, Acting Director General Personnel Policy and Employment
Conditions, make this Determination under section 58B of the Defence Act 1903.
Dated 18 July 2011
P A E BAVINGTON
Acting Director General
Personnel Policy and Employment Conditions
People Strategies and Policy Group
Ref028
1
Citation
1.
This Determination is Defence Determination 2011/34, Financial support for legal or
financial advice on death of a member.
2.
This Determination may also be cited as Defence Determination 2011/34.
2
Commencement
This Determination commences on 4 August 2011.
3
Amendment
Defence Determination 2005/15, Conditions of Service, as amended,1 is amended as set
out in this Determination.
4
Clause 11.3.1 (Purpose)
substitute
This Part sets out financial benefits that may be provided on the death of a member. They
include payments for leave not taken, bereavement payments and reimbursement for
financial or legal advice.
5
Clause 11.3.3 (Bereavement payment)
insert at the end
11.3.4
Payment for financial or legal advice
1.
This payment assists persons with legal or financial responsibility upon a member's death to
carry out their duties. It is intended to assist the person to make sound and rational
decisions associated with their role.
2.
This clause applies to a person who meets both of the following conditions.
a.
They must be a member of the family as defined under section 58A of Defence Act
1903.
See: Defence Act 1903, section 58A, Interpretation.
b.
3.
They hold any of the following roles.
i.
An executor of the deceased member's will.
ii.
A beneficiary of the deceased member's estate.
iii.
A legal personal representative of the beneficiary of the deceased member's
estate.
The person may be eligible for a payment under this clause if all of the following have been
met.
a.
The CDF forms a belief that the person would have difficulty making decisions
required of them, but that this is unlikely to result in the appointment of another
person to make the decision on their behalf.
2
b.
The CDF believes the difficulty is caused by either of the following.
i.
A lack of demonstrated adult cognitive maturity.
ii.
Another cognitive or functional impairment.
Note: The CDF may rely on various formal and informal sources in forming his belief.
c.
4.
The CDF decides that based on his belief, the person needs the support to carry out
their role in making sound and rational decisions on financial or legal matters.
The person may be reimbursed up to $2,000 for each of the following costs.
a.
Financial advice obtained from a financial advisor who holds a current Australian
financial services licence.
b.
Legal advice obtained from a legal practitioner.
Exception: The payment is not for legal or court costs or for obtaining legal advice
relating to disputes.
Example of exception: Disputes over access to children, testament or will disputes,
rental property disputes, or disputes between beneficiaries.
NOTE
1.
Defence Determination 2005/15, as amended to date. For previous amendments see Note
to Defence Determination 2011/1 and Defence Determinations 2011/2, 3, 4, 5, 6, 7, 8, 9, 10,
12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32 and 33.
3
EXPLANATORY STATEMENT
Defence Determination 2011/34
This Determination amends Defence Determination 2005/15, Conditions of Service (the Principal
Determination), made under section 58B of the Defence Act 1903 (the Act). Chapter 11 of the Principal
Determination sets out provisions dealing with assistance available if a member of the Australian Defence
Force (ADF) dies or suffers personal injury or disease as a result of their service.
The purpose of this Determination is to provide financial assistance to certain persons who have legal or
financial responsibilities on the death of a member. The aim is to assist a person who the CDF believes is
suffering significant impairment in their reasoning ability, either temporarily or permanently, and so may
experience difficulty reaching sound decisions in these complex matters.
Clause 1 of this Determination sets out the manner in which this Determination may be cited.
Clause 2 of this Determination provides that the Determination commences on 4 August 2011.
Clause 3 specifies that the amendment is made to the Principal Determination, as amended.
Clause 4 amends the purpose statement for Chapter 11 Part 3 (Payment of financial entitlements on
death) to include reference to reimbursement for financial or legal advice.
Clause 5 inserts a new clause into the Principal Determination. The new clause 11.3.4 of the Principal
Determination sets out:

the purpose and intent of the financial assistance being provided;

to whom the financial assistance may be provided;

the type of services for which financial assistance may or may not be provided; and

the maximum amount of financial assistance that can be reimbursed for each advisory service.
Criteria are provided for the exercise of discretions under the Principal Determination, as amended by this
Determination. Adverse decisions are subject to merits review by means of appeal to the Defence Force
Ombudsman.
Authority: Section 58B of the
Defence Act 1903