4.6.1 Survival of claims

Subsection 55(1)

Subsection 55(1) provides that where a person who is entitled to make a claim for compensation under DRCA dies without making a claim, a claim may be made by the person's personal representative.

Whilst personal representative is not defined in the DRCA, subsection 4(1) provides that:

• a reference in this Act to a claimant is, in relation to any time after the death of the claimant, a reference to his or her legal personal representative.

Personal representative

Delegates should be mindful that a claim for permanent impairment compensation made after a veteran’s death can only be made by the veteran’s personal (legal) representative.  This includes a request for reassessment or internal or external review.

A family member, for example a veteran’s widow/er, is not automatically a personal representative.  Delegates will instead need sufficient evidence that the person making the claim is:

• the executor of the veteran’s will, or
• the trustee of the estate, or
• a person who holds enduring power of attorney, or
• a person who is appointed by the courts as having legal administration or control of the late veteran’s affairs.

What authority does a veteran’s advocate or legal representative have following their death?

A veteran’s advocate or representative does not automatically have legal authority to make a claim for permanent impairment compensation after a veteran’s death.  Only where that person is also appointed as the personal representative, can they make a valid claim and be provided with any information about the claim.

Example 1

A claim for permanent impairment compensation is made by the late veteran’s daughter, following the death of the veteran.  A copy of the late veteran’s will is provided, listing the daughter as sole executor of the estate.  In this instance, the delegate may determine the claim is valid because it was made by the late veteran’s personal representative.  The delegate may discuss any matters relating to the claim with the daughter and may provide the daughter with a copy of the determination letter.  Any compensation determined payable forms the estate of the late veteran – please see Chapter 4.6.2 of the DRCA PI Policy Manual.

Example 2

A claim for permanent impairment compensation is made by the late veteran’s advocate, following the death of the veteran.  The delegate seeks a copy of the late veteran’s will, however the advocate confirms the veteran died without a valid will.  The delegate then seeks additional information, such as evidence confirming who has been appointed by the courts as having legal administration.  The advocate advises that the late veteran’s son has been provided letters or administration by the court.  In this instance, the claim made by the advocate is invalid.  A claim may only be made by the late veteran’s son, because he is appointed by the courts as the late veteran’s personal representative.  The late veteran’s son has legal authority to provide instructions as to the bank account the permanent impairment compensation should be directed to – please see Chapter 4.6.2 of the DRCA PI Policy Manual.

Subsection 55(2)

Subsection 55(2) provides that where a veteran dies after making a claim for permanent impairment compensation, the claim is not affected by the death of the veteran.

This means that a determination in respect of an amount of permanent impairment compensation may still be made, despite the veteran’s death during the investigation of the claim, providing there is sufficient medical evidence to do so.

Where a person makes contact with the Department about the claim after the veteran’s death, delegates need to be mindful that any matters relating to the claim, either its progress or outcome, must only be discussed with the late veteran’s personal representative.  This includes a claim under internal or external review.

Example 1

A claim for permanent impairment compensation is made by the veteran on 30 March 2023.  Before the claim is determined, the veteran passes away on 30 May 2023.  In this instance, the claim is not affected by the death and the delegate may proceed to make a determination in respect of the degree of permanent impairment.  On 15 June 2023, the delegate is contacted by the late veteran’s widow, who seeks an update on the claim.  The widow provides a copy of the will and it is confirmed that she is the sole administrator of the estate.  The delegate is authorised to provide any information relating to the claim, including a copy of the determination to the widow, because she is the late veteran’s personal representative. In this instance, compensation for non-economic loss under section 27 is not payable (see information under ‘subsection 55(4)’ below). The widow also has legal authority to provide instructions as to the bank account the permanent impairment compensation should be directed to – please see Chapter 4.6.2 of the DRCA PI Policy Manual.

Subsection 55(4)

Subsection 55(4) provides that following the death of a veteran, compensation for non-economic loss under section 27 is not payable.

This means that compensation for non-economic loss compensation under section 27 is not payable in both of these circumstances:

• the veteran dies after making a claim for permanent impairment, but before the claim is determined, and
• the veteran dies before making a claim for permanent impairment, but a valid claim is made by the late veteran’s personal representative.

The bar on payment of non-economic loss compensation also applies to reassessments following an earlier interim payment under subsection 25(1), or, a reassessment under subsection 25(4).

Getting help

If delegates require assistance determining whether a person is a personal representative, or any other matters relating to survival of claims, they should contact Benefits and Payments Policy via the Delegate Support Framework.