The Trusts Act 2019 came into effect on 30 January 2021, impacting all trusts. So even if your trust was set up prior to 30 January, it must still be managed within the scope of the new rules.The changes largely promote trustee accountability and transparency to beneficiaries. Since the new Act came into effect, there’s been a lot of misunderstanding and confusion about the new rules so we’ve set out to demystify some of those in a recent ‘Off the record’ article that you can read here.So why use a trust? Trusts are often used to protect assets from being at risk due to debts, business liabilities or relationship breakdowns. They can also be useful when it comes to helping arrange the distribution of assets to younger family members in the future.How a trust worksThink of your trust a little bit like setting up a club and you are the committee.  As the committee member you’re required to manage the assets in the trust for the benefit of the club members. Your job is to keep the club documents up to date in case you get ’audited’ by the club members. The scope of your role means you have certain performance duties and you’re accountable to the members for carrying out those. You can and will be taken to task if you act contrary to those performance duties.It is therefore important that the trust deed (a little like a club constitution or basic set of rules for running your club) gives the committee the power to act and manage the trust as they consider fit and that any actions are always carried out within those parameters.There are no silver bulletsTo work well, trusts and wills should be wrapped up together.When it comes to trusts, one of the most common misunderstandings is people treating the trust assets as their own and not realising what divesting their assets to the trust actually means. Divesting your assets to a trust means essentially those assets are no longer yours. This is where it can get a bit confusing. When it comes to making your will for example, you may wish to leave your assets to your children, even though most of those assets are in a trust. The assets in the trust cannot just be given away under your will. They can only be distributed by the trustees and according to terms in the trust deed. A trust should always therefore, be backed up by a will. Your will should be written to compliment the trust and a memorandum of wishes should also accompany both of those.That way, your will ties in with your trust and the entire package is wrapped up tight, so you get the outcome you want.

As we continue to navigate Alert Levels, here’s a few points to keep in mind. It’s important to remember that if you’re operating a business, it is up to each business to check that you meet the definition set out for Alert Level 4 business or service. The Government has also set out some guidelines about operating a business during the different Alert levels that you may find useful which you'll find here. New rules for recording visitors Covid record keeping will soon be mandatory through all the Alert levels and will come into effect 7 days after the next Alert Level change to allow businesses time to prepare. (Retailers will be excluded from this however).If you don’t already have your QR code poster, there are two ways you can do this:complete an online form (you will need to fill in a separate form for each business location); or complete the Ministry of Health template (if you do not have a New Zealand driver licence or if your business is in a number of locations). Simply download and complete the template, and then email it to [email protected] when it comes to mask wearingWe know that face coverings help stop the spread of Covid-19 and it’s mandatory to wear one if you are a customer, or an employee who has customer contact, while operating at Alert Level 4. You must also wear one through the various alert levels if you are using public transport, on flights, or taking taxis or ride-share vehicles. Obligations under the various alert levels are set out here for your information.A range of financial support is available You may be eligible for financial support, including the Wage Subsidy Scheme and the Resurgence Support Payment. You can apply for an allowance through Work and Income here. A short-term absence payment is available for some people who cannot work from home while they wait for a COVID-19 test, and a leave support scheme is also available if an employee needs to self-isolate and cannot work from home. To find out how Alert Level 4 will impact you click here. If you need specific assistance on how to operate as a business or service you can find out more here. Please remember that as an employer, your legal obligations have not changed. We’re always here to provide expert legal advice, so please just get in touch with Robbie Bryant. 

The Government has confirmed it will continue to support businesses as we find ourselves once again at Alert Level 4. Here is some information that you might find helpful at this time.The wage subsidy scheme is available if the eligibility criteria is met and rates have been increased. Applications are open from Friday, 20 August. A resurgence support payment is also available for businesses.A short-term absence payment will be available for some people who cannot work from home while they wait for a Covid-19 test.A leave support scheme is also available if an employee needs to self-isolate and cannot work from home. To find out how alert level 4 will impact you click here. If you need specific assistance on how to operate as a business or service you can find out more here.If you would like to apply for any of the allowances above you can do so through Work and Income. If you are an employer, please remember that your ordinary employment law obligations apply.The team at Aspiring Law remains on-hand to help in whatever way we can during these challenging times. If you need employment advice, please get in touch with Robbie Bryant on 021 224 6209 [email protected] Kia Kaha – the team at Aspiring Law. 

From 24 July 2021, employees will be entitled to 10 days’ sick leave for each 12-month period of employment – that’s an increase of 5 days per annum.Here’s a summary of the changes and some general advice.Sick leave will increase from 5 days to 10 days for each 12-month period of employment, after the required entitlement threshold has been passed (“Anniversary Date”).Employees will be able to carry over a maximum of 10 days’ sick leave not taken, as opposed to the current 15 days, to any subsequent 12-month period of employment (the maximum that can be carried over remains at 20 days). Existing employees (employed on or from 24 July 2021), become entitled to 10 days’ sick leave when their next Anniversary Date falls. Here’s an example:Tanner is a current employee. Tanner’s Anniversary Date is 1 November. At 1 November 2021, Tanner becomes entitled to 10 days’ sick leave. Up to 1 November 2021, Tanner’s sick leave entitlement remains at 5 days per annum.   If you’re an EmployerEmployers will need to update employment agreements to reflect these changes. If you’re a Payroll Administrator, you need to be aware of these changes and when they will apply. 

Introducing the one and only Rayner Swartz. ‘The Rain Man’ goes by many titles - titles born from the admiration our attending Youth have for him and the respect he garners from his colleagues. It’s not often you find someone with more than one nickname, but then again Rayner is no ordinary man (as the photograph below may suggest). Some common salutatory exclamations that often reverberate within the walls of The Crib (and some of my personal favourites) are: the cool-kid of Kahu; the shoeless strummer and of course, the fire-throwing maestro. Rayner was born in Bloemfontein, South Africa and was raised there for his first 5 years before he made the move to New Zealand; a place he now calls home. Rayner’s strong passion for the outdoors and a penchant for rock climbing has allowed him to settle in Wanaka and he hasn’t thought about leaving since arriving here in 2016.Rayner Swartz, Youth Worker ExtraordinaireAt The Crib, Rayner’s infallible modus operandi when engaging with Youth is beyond reproach. A kind-hearted, warm and genuine soul, Rayner has the ability to produce life-affirming moments regularly and quite possibly, a life-long change for some. Rayner’s project of the moment is a drawing club he runs at MAC during lunchtimes, every week on a Tuesday afternoon. Some of our regulars at The Crib are avid attendees of these sessions but their interest doesn’t stop at the school gates. You can normally find a group of highly focussed Youths huddled around Rayner in the kitchen, each producing artistic marvels of Salvador Dali-esque drawings. We are truly blessed to have Rayner, and we are sure the community feels the same. If you need to contact Rayner regarding his projects or future plans, you can contact him via email at [email protected]. A HUGE THANK YOU to the following funders for their recent generosity:Sargood Bequest and Scotlands Te Kiteroa Trust for supporting the delivery of youth programmes, activities and events in the Upper CluthaMSD community capability and resilience fund and Alexander McMillan Trust for the purchase of new items for The CribCreative Communities Scheme for delivery of Matariki creative workshops and a Radio Skills programme for young peopleYouth Worker Training Scheme for the training of our fantastic Youth Worker Team

In 1993, the internet was in its infancy, Mark Zuckerberg was nine years old, and Facebook was just a twinkle in his eye. That same year, the Privacy Act was passed in New Zealand.It was the first national information privacy law outside Europe to apply to both the public and private sectors. It was considered a ground-breaking piece of legislation and it went a long way to advancing the privacy rights of individuals in New Zealand.A lot has changed since then. Social media, ecommerce, cloud computing, and Big Data have all conspired to make personal data the new oil — a commodity that is bought and sold to the highest bidder. The updated Privacy Act 2020 includes stricter data protection rules and raises the standard of privacy when it comes to dealing with clients’, customers’ and employees’ personal information.Privacy BreachesThe Privacy Act 2020 came into effect on 1 December 2020 and replaces the 1993 Act. The new law retains many of the original principles of the 1993 Act with some notable tweaks.One of the most significant changes is that businesses must now report any privacy breach, i.e. where private personal information is lost, made public, or accessed by unauthorised parties that could cause, or has caused, serious harm to the individuals involved.The mandatory breach notification principle means businesses will have to notify the people whose information has been leaked and also report the breach to the Office of the Privacy Commissioner. Previously, it was up to individuals to make a complaint and prove they had been harmed as a result of a privacy breach.Read the full article here.

Some options for offering shares The Covid pandemic has paved the way for innovation, and many New Zealanders spent 2020 investing time and money into their new or existing businesses.   When raising capital to grow their business, however, many business owners find themselves limited by the size of their wallet. While interest rates are currently at an all-time low, trading banks’ lending terms are arguably the strictest in recent memory.   There are, however, alternatives to using personal funding or borrowings; you can offer shares in the company in exchange for funds (or ‘capital’).     While this method of capital raising sounds relatively straightforward, it can be a costly and complex process for business owners to navigate. When a business elects to raise capital by offering shares, it is governed by the Financial Markets Authority of New Zealand (FMA) and the Financial Markets Conduct Act 2013 (FMCA). Broadly, the FMA requires any offer of shares to be accompanied by a full suite of disclosure documents in accordance with the FMCA; these disclosure documents are expensive and time-consuming to prepare. The ongoing reporting associated with these activities is also significant and often requires substantial professional assistance from accountants and lawyers.    A lighter option There is, however, another option that is lighter in its compliance requirements. Business owners can limit their share offer to investors who meet the eligible criteria of Schedule One of the FMCA. Schedule One offers are frequently the ideal solution to allow a company to raise capital while only making limited disclosure and, in some circumstances, no disclosure at all.  Read more here.

If you think that the new Trusts Act that came into effect on 30 January 2021 has nothing to do with you, think again. What if you happened to be the beneficiary of a trust without knowing it? Or what if you were eligible to inherit a small (or large) fortune without realising it? These are some of the scenarios the new law aims to resolve.Previously, it wasn't clear what trust information should be disclosed to beneficiaries. The new law clarifies that and means that it is more important than ever for trustees and beneficiaries to know their obligations and responsibilities under trust law. If that sounds daunting, this practical checklist will help you figure out what you need to do to comply with the new Trusts Act.Trustee responsibilitiesTrustees must keep the interests of beneficiaries at the heart of every decision they make and generally at all times. The new legislation records compulsory duties for trustees, which cannot be changed, and they include:A trustee must know the terms of the trust.A trustee must act in accordance with the terms of the trust.A trustee must act honestly and in good faith.A trustee must deal with the trust property for the benefit of the beneficiaries.A trustee must exercise the trustee’s powers for a proper purpose.Read more here.

The recent lockdowns in Auckland prompted the government to offer support to affected businesses nationwide.“The payment is available to businesses nationally if they can meet the eligibility criteria, not just those in Auckland,” said Finance Minister Grant Robertson. “That decision recognises that many businesses rely on Auckland for revenue, so it is only fair that the payment is available nationally.”Meeting the eligibility criteria is key. The Ministry of Social Development (MSD) has been carrying out random audits of the 759,000 businesses that received last year’s wage subsidy. At the end of February, MSD had completed 10,902 audits of the wage subsidy and resolved 4750 allegations of misuse. So be warned. If you claim COVID-19 support payments, you must be able to prove you are entitled to them.Back up Your Claim“The wage subsidy has been a lifeline for a lot of companies so take advantage of it if you can,” advises Robbie Bryant, a Senior Associate with Aspiring Law. “Does Auckland's lockdown impact our region? Well we've had a number of events cancelled including Motatapu, which generally brings 1500 to 2500 athletes and their families into town, so there is a lot less business and foot traffic as a result of the lockdowns.” “The funding is available to businesses in Central Otago but you should make sure you meet all the criteria. You have to provide a statutory declaration to prove a substantial loss of income. And if you are claiming for employees, you have to commit to retaining those employees. As with any statutory declaration just remember to back it up with evidence. If you're unsure whether your business is eligible or not, it might pay to seek accounting and legal advice to help you make the right decision.”Read more HERE

If you are looking to hire new staff, you will no doubt be grappling with what specific terms should be included in your employment agreements. This will likely include thinking about the inclusion of a trial or probationary provision. If not, please do consider using one as they are super handy.Here is a quick question and answer section to help with your decision making.Presumably, they are different, right?Correct - trial and probationary provisions are very different beasts. Failing to recognise this can be a costly mistake.Okay, so how then are they different? If an employee’s employment is terminated under a valid trial provision, the employee cannot bring a personal grievance claim or legal proceeding in respect of the dismissal. Put another way, the employee is unable to bring a personal grievance claim of unjustified dismissal against the employer. When deciding whether to terminate an employee’s employment under a trial provision, an employer is not required to adhere to the good faith requirements regarding: (1) providing the employee with access to information, relevant to the continuation of their employment, about the decision, and (2) an opportunity to comment on that information before the decision is made.This effectively removes the justification and procedural requirements associated with ordinary terminations for cause.With probationary periods however the ordinary procedural and substantive justification obligations associated with terminations for cause must be adhered to.I’ve heard that only employers with 19 or fewer employees can use trial provisions. How do i calculate how many employees I have? Read more here.

Kahu Youth are excited and privileged to introduce Sam Strong, our newest Youth Worker! Sam, who hails from Ontario, Canada has been in Wanaka just over two years where she has been teaching preschool at Wanaexcel before making the plunge and joining our growing team! Sam’s departure from teaching was fuelled by a desire to return to her roots of youth programming and an eagerness to create stronger and meaningful connections to the community. Sam is excited for the change in pace with her new role.Sam began working with the Ontario Camp Association in 2006 which was her first role as a Youth Worker and since then has gone onto work in British Columbia as a Youth Programmer. Her move to Wanaka was propelled as a means to continue her globe trotting and cultural exploration. She soon found herself feeling at home as the landscape and societal tendencies mimic the lifestyle often found back home in Canada.Apart from her passion for Youth Development and Social Work, Sam is a snowboarding enthusiast, a keen football player and also currently plays for Upper Clutha Women’s Hockey Team. As passions normally do, Sam’s sporting interests developed into youth coaching roles in British Columbia and Ontario.‘I am excited for the change in pace and to be challenged on a daily basis. It is a different challenge to teaching young children and I hope to influence and inspire the youth in Wanaka to develop and lead their own path. I hope to inspire respectful rebellion, to help them push the social norms, to be the change and to try new things. I want to teach them that failure is part of the journey but importantly, to always keep going.’If you would like to contact Sam regarding her work at Kahu Youth, you can contact her on 034435880 or [email protected] or you can visit our website here

If you are at the stage where you need an employment agreement, then congratulations - you’ve come to the crunchy end, where the formalities begin. It is crucial that you get the legal documentation correct.If the preliminary work to define the role and the terms of the offer are already clear, then the accompanying employment agreement will be straightforward. This step is vital, no matter how short or long term the position may be. Every employee must have a written employment agreement.To make life easy, all you need to do is provide us with some key information (from the comfort of your own home), then, one of our specialist employment lawyers will create these documents for you.For more information and get started click here.

Trust is high on the list of priorities when people are looking for a lawyer. But how can you trust someone if you don’t know them? At Aspiring Law, we pride ourselves on our friendly, approachable, ‘work hard, play hard’ team. We think you’ll like them too. Since Janice Hughes and Mike Toepfer founded the practice in 2011, Aspiring Law has grown to become Wanaka’s leading legal practice with 19 lawyers and support staff. ‘Our team has a lot of different interests and areas of expertise but one thing they all have in common is a passion for providing practical and pragmatic legal advice without the waffle.’What better way to get to know someone, than to ask them a few questions… Here’s what we asked Julie: Name: Julie AitkenWhere I grew up: Originally from Blenheim in Marlborough.The best piece of legal advice I can share: Get things sorted up front before issues arise later down the track.What I do when I’m not working: I love being in the outdoors, hence why I love living in Wanaka.  Favourite spot in Wanaka/Lakes District: Wanaka is my ‘happy place’ and swimming in the lake at Mou Waho is pretty hard to beat.Tell us something most people don’t know about you: I used to have my own personal training business in Marlborough where I supported women to get active and get outdoors.Julie is our Associate Lawyer and Legal Design Innovator. That’s a fancy title that basically means improving how things are done around here. Give her a call on 03 443 0900.

As we begin a new year with new adventures and many new faces, we also look back to those who have supported us through what was a tumultuous but positive year! We would like to express our gratitude to The Lion Foundation for keeping us comfortable with a brand new heat pump, and for keeping us entertained with a new pool table! The Lion Foundation also supports our operational costs so we can continue providing quality youth and community services to the Upper Clutha. Thank you for your partnership and support!Some of the youth attendees enjoying the new heat pump!If you would like any further details or have any questions about our plans for 2021, you can contact Kahu Youth at [email protected] or call us on 03 443 5880. Kia Kaha!

In the previous article (Child Development and Tips for Parents), we talked about the stages of development children go through and provided some general tips for parents during each stage. In this article, I will suggest some tips, which take into account a child’s development stage, that parents can consider when determining care arrangements.It is important for parents to remember that there is no uniform approach that has to be taken when deciding on care arrangements. These are simply ideas for parents to consider and are by no means the only care arrangements that will work for their children.Great tips are here.

When couples separate or divorce, one of the most important and challenging things to consider is care arrangements for their children. A separation is a traumatic thing for any child to go through, even more so, depending on what development stage they are at.The development of children happens over many years and this is the reason why children cannot be considered as “miniature adults”.  Development is deemed to be the intersection between the physical, mental, social, cognitive and emotional states and care arrangements must take into account the development stage of children caught up in a separation.Learn about the developmental stages here.

Trust is high on the list of priorities when people are looking for a lawyer. But how can you trust someone if you don’t know them? At Aspiring Law, we pride ourselves on our friendly, approachable, ‘work hard, play hard’ team. We think you’ll like them too. Since Janice Hughes and Mike Toepfer founded the practice in 2011, Aspiring Law has grown to become Wanaka’s leading legal practice with 19 lawyers and support staff. ‘Our team has a lot of different interests and areas of expertise but one thing they all have in common is a passion for providing practical and pragmatic legal advice without the waffle.’What better way to get to know someone, than to ask them a few questions… Here’s what we asked Janice: Where I grew up: A small town called Tapanui outside Gore where I was immersed in Blue Mountain Nurseries, the family business.The best piece of legal advice I can share: You don’t know what you don’t know. Get advice from the professionals. Google isn’t a lawyer.What I do when I’m not working: I love the outdoors (mountain biking, skiing, swimming and walking), as well as making and tasting good wine.Favourite spot in Wanaka/Lakes District: My favourite spot is on the drive into town from Cardrona when you come over the brow of the hill into Wanaka town and see the vista of the lake and mountains in front of you. It’s magical.Tell us something most people don’t know about you: I love designer fashion and can often be found trawling the fashion websites or checking out my favourite clothing and shoe boutiques. People frequently ask me how many black outfits I own – I never answer because I’ve never counted.Property, business, trusts, will and estate matters are just some of Janice’s areas of expertise. Give her a call on 03 443 0900.

If I could choose for every single adult one New Year’s resolution, very high on my list would be getting your affairs in order.“I will, I will – some day,” I hear you say.“Some day” might be too late.Having a Will gives you peace of mind in life, and your loved ones some comfort and less stress when you’re gone.The DIY WillPreparing your own Will is an option, but a small omission or procedural flaw can render a homemade document null and void. Unless you’re completely au fait with the formalities, consult your lawyer.For those who haven’t made a Will and are muttering: “Well, everyone knows what I want to happen when I go,” – think again. Rather than your estate being tidied up quickly, it will take months, if not a year or more, for your affairs to be settled.During that time, your worldly goods will be frozen; nobody can benefit from them. Your estate is also likely to be thousands of dollars poorer, too, as, without a Will, the whole process needs to go through the court system.Unless your wishes are properly documented, you are leaving your loved ones a stressful legacy and, probably, significantly out of pocket. Also, the law, not you, will dictate what happens to any dependents and assets. READ MORE: https://aspiringlaw.co.nz/articles/where-theres-will-theres-far-less-stressful-way

A recent decision by the Supreme Court highlights the consequences of breaching directors duties, even if the director believes they are acting in the best interests of their creditors. The case of Debut Homes Limited v Cooper has big implications for directors involved in a business that is struggling financially and is a timely reminder that directors need to take their duties extremely seriously. It also provides some really good guidance on what to do and more importantly, what not to do, if you’re a director of a company in financial difficulty.The backgroundDebut Homes Ltd was a residential property development company owned by Mr. Leonard Cooper, who was also the sole director. The company was incorporated in 2005 but by the end of 2012 Mr. Cooper, on advice from his accountant, decided to wind down Debut’s operations. Debut’s assets had been less than its liabilities (balance sheet insolvency) since March 2009 but it had been supported by shareholder advances from Mr. Cooper, up until the end of October 2012, and had paid all its debts as they fell due. It had, however, been experiencing cost overruns and increasing debt and by the end of October 2012, was in real financial difficulty.Mr. Cooper decided that four existing developments would be completed and sold in order to pay some of its creditors but no new developments would be undertaken. Mr. Cooper would have owed the Inland Revenue over $300,000 in GST once the wind-down was completed but he didn't engage with the IRD in any way at all.Debut Homes was finally placed into liquidation in 2014 by the IRD with an unpaid GST bill of $450,000 (including penalties and interest).The decisionThe High Court initially found Mr Cooper had breached his duties as a director and ordered him to pay the liquidators $280,000. The Court of Appeal overruled that decision and found Mr Cooper’s decision to continue trading was for the benefit of all of the company’s creditors. However, the Supreme Court overturned the Court of Appeal’s decision and found Mr Cooper to be in breach of the key duties of the Companies Act. Read more here.