Survival of claims
Section 55 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) contains provisions enabling both:
Section 55 of DRCA also contains provisions preventing payment of compensation for non-economic loss under section 27, however does not affect payments under section 24 or 25.
Please refer to chapter 4.6.1 of the DRCA PI Policy Manual for more information about survival of claims.
Provisions applicable on death of beneficiary
Section 111 of the DRCA contains provisions relating to whom permanent impairment compensation is payable following the death of a veteran.
If there is a will
If there is not a will
Please refer to chapter 4.6.2 of the DRCA PI Policy Manual for more information about provisions applicable on death of beneficiary.
Personal representative
Whilst personal representative is not defined in the DRCA, subsection 4(1) provides that:
Please refer to chapter 4.6.1 of the DRCA PI Policy Manual for more information about who is a personal representative.
What general information should be requested before proceeding?
Regardless of whether a valid permanent impairment claim is made before or after a veteran’s death, delegates need to ensure any matters relating to the claim are only conveyed to the personal representative after the veteran passes away. Delegates should therefore obtain the following information immediately upon being notified that a veteran has passed away:
Getting help
Where complex cases arise, delegates should seek assistance from Benefits and Payments Policy via the Delegate Support Framework as early in the process as possible. This will ensure the Department does not disclose information relating to a veteran’s claim to a person who does not hold the relevant legal authority.
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:
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:
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) 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 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.
If there is a will
Subsection 111(1) of the DRCA provides that if a veteran dies before a determined amount of permanent impairment compensation is paid to a veteran, the amount forms part of the veteran’s estate.
This subsection relates to cases where the veteran dies with a will. The veteran will normally nominate their personal representative in the will and that personal representative may provide the Department with instructions as to the bank account the permanent impairment compensation should be directed to.
What if there is more than one personal representative?
In cases where a will nominates more than one person as personal representatives, those people have equal legal authority to act on matters of the late veteran’s estate, including equal legal authority to provide the Department with instructions as to the bank account the permanent impairment compensation should be directed to.
As an example, the delegate may decide to provide both personal representatives with a copy of the determination and a bank account form requiring the signatures of both parties. However, if information is provided confirming one of the personal representatives does not wish to act in their position, then the other personal representative is not limited in their position and may proceed to instruct the Department in this regard.
What if the personal representative does not wish to act in their position as personal representative?
In cases where a personal representative does not wish to act in their position, they may be able to renounce their role, however this can only be determined by the court. Delegates should be mindful that a personal representative is not able to unilaterally appoint another person to take over as personal representative. Only the court can appoint a personal representative and delegates will need to be provided sufficient evidence to show another person has been appointed to the role, before that person can be provided any information relating to the claim.
If there is not a will
Subsection 111(3) provides that if a veteran dies intestate and there is no other person apparently entitled to claim the estate, the amount is paid to the Commonwealth.
This subsection relates to cases where the veteran dies without a will and there is no other person who applies to the court for letters of administration or probate of the will and therefore, there is no one else apparently entitled to claim the estate.
Where delegates have conducted sufficient investigation to determine no one intends to apply for letters of administration or probate of the will, any determined amount of permanent impairment compensation is paid to the Commonwealth, which means it is not paid.
Example 1
A claim for permanent impairment compensation is made by the veteran prior to their death, however before permanent impairment compensation is determined and paid, the veteran passes away. The widow advises the delegate there is no will but that she is applying to the court for letters of administration. In the interim period before the court grants the widow letters of administration, the delegate should not provide the widow with any information relating to the claim. The court later appoints the widow as sole administrator and the delegate is satisfied the widow is a person apparently entitled to claim the estate. In this case, subsection 111(3) does not apply and subsection 111(1) has the effect that the amount of permanent impairment compensation is payable to the estate. The widow, in her position as administrator, may instruct the Department as to the bank account compensation should be paid to.
Getting help
If delegates require assistance with any matters relating to wills, estates or determining who is a personal representative, they should contact Benefits and Payments Policy via the Delegate Support Framework.
Links
[1] https://clik.dva.gov.au/user/login?destination=node/20756%23comment-form