Dear Legal Help Desk

QWe recently sold up an overdue storer’s unit and now have in our possession an urn of ashes, what should we do with them?

A(Australian members):

The disposal of ashes is an ethical rather than legal dilemma for the Facility. We recommend making further attempts to contact the storer and the Alternate Contact Person (ACP), including a notice in writing providing that if no arrangements are made for the ashes to be collected within a set period (e.g. 60 days), then the Facility will dispose of it without further notice. The Facility should make a file note of each attempt.

In the event these attempts are unsuccessful, the Facility may dispose of the ashes.

We note that local council and other public bodies have varying requirements concerning the disposal of ashes, with some having no formal or published policy. It may be helpful to contact the crematorium listed in the crematorium certificate and ask whether they have somewhere that ashes can be sensitively disposed.

A(New Zealand members):

A similar position applies in NZ. We would like to add that as disposal of ashes is such a sensitive matter, we recommend that the Facility ensures that it holds onto the ashes for a sensible period of time after the notice period expires and of course that it keeps copies of all notices that it has sent to the storer and ACP. While there is no legal obligation to hold on to the ashes for longer than usual, it would reduce the risk of causing distress to the storer (if they did turn up at a later date) and possibly negative publicity if the storer publicised the disposal of ashes.

Like Australia, many local councils in New Zealand restrict how ashes can be disposed of. If you have details of the crematorium that processed the ashes, we recommend contacting them for advice.

QWe have the Agreements, ID, death certificate and a Letter & ID from a storer’s Mother & ACP stating that they give permission for us to dispose of the storers items. Can we now proceed with disposal? A (Australian members):

On the death of a Storer, all property including the goods in his storage unit vest in either the executor under his will or the administrator of probate (appointed by the court). Only the executor or the administrator is legally permitted to deal with the Storer’s assets. Therefore the facility should only follow the Storer’s mother’s request for disposal of the stored goods, if you are satisfied that the mother has legal capacity. The best way to ascertain her legal capacity is to sight a grant of probate or letter of administration appointing the mother by name. These are official court documents and will have a court seal on them.

In certain situations, however, where the estate of the deceased is of little value, the executor/next of kin may not elect to obtain a grant of probate due to the costs involved. Should such a circumstance arise, we recommend having the executor/next of kin of the estate sign a statutory declaration which includes an indemnity provision. This will allow the facility to deal with the goods at the direction of the Executor/next of kin without probate being obtained and with limited risk.

A(New Zealand members):

The advice set out above for Australian members also applies for New Zealand members.

Where the executor is claiming that grant of probate is not required as the estate is of little value, we also recommend that the facility considers requesting a letter addressed to the facility from a lawyer representing the person administering the estate confirming that: l probate and letters of administration are not required under the

Administration Act 1969; l the person requesting access to the storage unit is entitled to claim the deceased’s estate and to access the deceased’s items stored at the facility; and l the facility may grant access to the person requesting access so that the person may administer the estate.

Where probate/letters of administration are not granted, we also recommend that a representative from the Facility videos/photographs the goods in the space when it is accessed, to provide a record of what is in the space in case there is a later dispute.

QRecently we had a Power of Attorney (“POA”) come in and want to get a sign up for a storage unit on behalf of the donor (whom is under house arrest). When signing up she provided the paperwork and her license showing that she is in fact authorised to act as a POA and completed the storage Agreement under the donors name making herself the ACP. She then signed the paperwork as herself.

However, as the client (donor) did not attend the Facility, we never received his license. Should we have got a copy of his license also, and should we get a copy now given that he could potentially be able to leave the house and attend the Facility at a later stage? Does an ACP have the ability to cancel an Agreement? Does this differ for a Power of Attorney, as they are indirectly the client?

A(Australian Members): 1. Obtaining a copy of the

Storer’s licence. We recommend that the Facility does obtain a copy of the Storer’s licence if possible. Retaining a copy of the Storer’s licence will allow the Facility to: l identify the Storer if he attempts to access the facility or if there is any dispute in relation to the power of attorney (POA); l search the PPSR if there is a default in storage fees; and l provide relevant details to authorities if required.

2. Capacity to terminate the

contract. The power of attorney will outline whether the appointed attorney has the capacity to enter into or terminate contracts on behalf of the donor. These powers can be found in the POA and will either relate to personal, financial or specified matters.

In general, when dealing with appointed POAs, you should read the POA documentation carefully before entering into a storage agreement. When reading the POA documentation ensure that: l the appointed POA has the power to enter into the storage agreement on behalf of the Storer; and l the POA is enduring or, where the powers have been granted for a specified time period one, that it is within this specified period.

A validly appointed attorney will have the capacity to terminate a storage agreement.

A(New Zealand members):

New Zealand members should also follow the advice given for Australian members above. A Facility should, of course, consider carefully the risks involved with storing goods for a criminal who is being represented by a third party (under a power of attorney). If the Facility decides to proceed, an original copy of the POA should be sighted, and a Certificate of NonRevocation (which confirms the POA is still valid) should be required to be provided by the Attorney.

QWe have an ACP taking the Storers goods as the account is well overdue.

If the storer that is the contract holder calls in the future and asks about his goods, do we have to tell him the ACP has taken the goods?

A(Australian Members):

While the Facility is not technically required to tell the Storer that the ACP has collected the goods, to avoid further disputes in the future it would be good practice to inform the Storer that: l his payments were overdue, and the default notice procedure under the Agreement was followed by the Facility; l the ACP has paid his account in full; l the ACP has collected the goods in accordance with Clause 10(i) of the

Agreement; and l the Facility’s Agreement with the

Storer is terminated

A(New Zealand Members):

The storer is entitled to information about their account and the termination of their contract so yes you should provide the information recommended for Australian members (but with the clause number from your agreement). l

Disclaimer: The information contained in these answers is of a general nature and is not intended as legal advice. It is important that you seek legal advice that is specific to your circumstances. Please refer to the SSAA’s website for more information on the SSAA’s Legal Help Desk.