Subsection 321(1) and (2) - Claim made before death
Subsection 321(1)
Subsection 321(1) provides that where a person dies after making a claim for compensation, the claim is not affected by their death.
This means that a determination in respect of an amount of compensation may still be made (including permanent impairment), despite the person’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 a claim after an eligible person’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 Legal Personal Representative. This includes a claim under internal or external review.
Subsection 321(2)
Subsection 321(2) provides that where an eligible person has made a claim under section 319 prior to their death, a claim for compensation may be made by the Legal Personal Representative, following their death.
Note: Section 321, section 78(7) and section 236(6) contain provisions preventing a Legal Personal Representative from converting permanent impairment compensation or compensation for a member’s death to a lump sum.
Subsection 321(3) and (4) - No claim before death
Subsection 321(3) provides that where a person who is entitled to make a claim for a service injury or disease under the MRCA dies without making a claim, a claim may be made by the person’s Legal Personal Representative.
Subsection 321(4) provides that the Legal Personal Representative may then make a claim for compensation that would have been payable up to the date of the eligible person’s death, excluding compensation for permanent impairment.
Any compensation payable forms part of the person’s estate.
Legal Personal Representative
Delegates should be mindful that a claim for compensation made after an eligible person’s death can only be made by a Legal Personal Representative. This includes a request for reassessment.
A family member, for example a veteran’s widow/er, is not automatically a Legal Personal Representative. Delegates will instead need sufficient evidence that the person making the claim is:
- the executor of the person’s will,
- the trustee of the estate,
- 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 solicitor have following their death?
A veteran’s advocate or representative does not automatically have legal authority to make a claim for compensation after a veteran’s death. Only where that person is also appointed as the Legal 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 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 Legal Personal Representative. Any payment of compensation in respect of the deceased veteran will form part of the estate of the veteran.
Example 2
A claim for compensation for death 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 of 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 Legal Personal Representative. The late veteran’s son has legal authority to provide instructions as to the bank account the compensation should be directed to.
Example 3
A claim for 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 Legal 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 part of the estate of the late veteran.
Example 4
A claim for compensation is made by the wholly dependent partner of a deceased veteran on 30 March 2023. Before the claim is determined, the dependent partner passes away on 30 May 2023. On 15 June 2023, the delegate is contacted by the partner’s daughter, who seeks an update on the claim. The daughter provides a copy of the dependent partner’s will and it is confirmed that the daughter 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 daughter. Any payment of compensation in respect of the dependent partner will form part of the estate of the deceased dependent partner.
Getting help
If delegates require assistance determining whether a person is a Legal Personal Representative, or any other matters relating to survival of claims, they should contact Benefits and Payments Policy via the Delegate Support Framework.