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Author Archives: Anita Swift

HCL

Posted by Kerrie Greenley

What is a Lasting Power of Attorney and why should I create one?

Unless you formally appoint someone to be able to make decisions on your behalf, then no one has any automatic right to act on your behalf in the event that you lose mental capacity.

For example, this means that spouses cannot make decisions on each other’s behalf, and neither can parents and adult children. In the event that you should lose mental capacity for any reason, such as dementia, alzheimers or an accident or any injury, then a costly and time-consuming application to the Court of Protection to be appointed as your Deputy could become necessary if you do not have valid LPAs in place.

LPAs are legal documents by which you can appoint one or more nominated people, called your attorneys, to help you make decisions or make decisions on your behalf either at your invitation or should you lose mental capacity.

There are two kinds of LPA. One deals with matters of your Property and Financial matters. The second option deals with Health and Welfare matters. It is important to note that they are completely separate documents and you can choose to set up either or both. Once the LPAs have been correctly signed, including by a certificate provider, they must then be registered with the Office of the Public Guardian before they are valid. Registration takes around 10 weeks.

What decisions can an attorney make?

An LPA for Property and Financial affairs can be used by your attorney as soon as it is registered, but only at your invitation or should you lose capacity. This LPA deals with practical issues such as assessing your bank and savings accounts, dealing with your investments, pensions etc. and also bigger decisions such as selling or buying property for you. An attorney has a restricted ability to make gifts on your behalf.

In contrast, an LPA for Health and Welfare does not allow your attorney to act on your behalf unless you are unable to make the decision in question. You remain completely in control of health and welfare decisions unless you have lost capacity. These decisions would include where you would live, what you might wear or what your diet may be, but it also potentially extends as far as being able to accept or refuse life sustaining medical treatment on your behalf.

Who should I appoint?

LPAs are powerful legal documents. Although your attorneys must act in your best interests at all times, you should only ever appoint attorneys whom you fully trust. Your attorney can effectively step into your shoes and do most things that you could do yourself.

You can appoint up to four attorneys, and also substitute attorneys who can step up should the appointed attorneys be unable or unwilling to act. LPAs are flexible documents which allow you to decide how you want your attorneys to act. You can add guidance or restrictions regarding when and how they should act.

You can appoint the attorneys in several ways, for example jointly or jointly and severally, or in a particular order. If attorneys are appointed jointly, they must all agree and always act together however, this can be impractical for some matters and may delay decisions that need to be taken at short notice, for example, if one attorney was out of the country. A ‘Joint and Several’ appointment means that your attorneys can act independently. You can also appoint the attorneys to act jointly in some matters, and jointly and severally in other matters should you wish to do so.

Overall, you should consider making LPAs because they can give you the peace of mind that comes from knowing attorneys whom you trust will be able to act on your behalf if you need them to.

If you wish to discuss creating an LPA, whether it be for Property and Finance or Health and Welfare, please contact Les Murray by e-mail at les.murray@hindle-campbell.co.uk or Kerrie Greenley by e-mail at kerrie.greenley@hindle-campbell.co.uk or by telephone on 0191 296 1777.

HCL

Posted by Clare Usher

No Fault Divorce

A year ago Legislation was passed to enable couples wanting to divorce to issue a no fault divorce. At present anyone petitioning for a divorce has to have grounds for unreasonable behaviour, 2 years separation, adultery or desertion. The majority of couples wanting a divorce as soon as the marriage has broken down have had to rely on a petition with one party saying the party’s unreasonable behaviour led to the marriage breakdown and give examples of the behaviour. This can often make an already difficult situation even more inflamed. For many years lawyers have campaigned for a reform of the divorce law and the implementation of the “no fault” divorce will be the biggest reform of divorce law in 50 years!

The Ministry of Justice had hoped to implement the “no fault” divorce by Autumn of this year but it now looks like this ground breaking change will not take place until 6 April 2022. We will keep you updated.

HCL

Posted by Anita Swift

We are hiring! Conveyancing Secretary/Assistant

A rare opportunity has arisen for a temporary Conveyancing secretary/assistant role to provide part time support in our very busy team.

In order to be considered for this role you should be an experienced legal secretary with excellent typing skills, a high degree of accuracy and a familiarity with case management systems.

Typical duties will include opening new files, checking ID, responding to correspondence, liaising with clients and general office administration. You will help to manage diaries, to prepare bills and transcribe dictation.

The ideal candidate will be client focussed, highly organised with strong communication skills and an ability to work on their own and use their own initiative.

This is a fantastic role for well a organised, dynamic individual.

Applications by post and e-mail.

Please provide a short introduction, and attach a copy of your CV addressed to:

Anita Swift, Office Manager (anita.swift@hindle-campbell.co.uk)

HCL

Posted by Stephanie Doughty

I have been left out of a Will or have not been left as much as I need. What can I do?

A person is entitled to leave their estate to whoever they want however there are some people who might reasonably expect to receive a share of it. In cases where reasonable financial provision has not been made, the Inheritance (Provision for Family and Dependants) Act 1975 allows the Court to change the shares of the deceased’s estate.

Am I eligible to bring a claim?

The Inheritance Act sets out the categories of people who may be eligible to bring a claim. These categories are:

  • the spouse or civil partner
  • a former spouse or civil partner who has not remarried or registered a new civil partnership
  • a person who was cohabiting with the deceased as ‘husband and wife’ for at least 2 years prior to their death
  • a child of the deceased
  • a person treated by the deceased as a child of the family
  • a person who was being maintained by the deceased

What is a reasonable financial provision?

Where you are the spouse of the deceased it is defined as such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance.

In cases involving the civil partner of the deceased it would be defined as such financial provision as it would be reasonable in all the circumstances of the case for the civil partner to receive, whether or not that provision is required for his or her maintenance.

For all other categories of people, reasonable financial provision means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.

What will the court consider?

In deciding whether to change the shares of the deceased’s estate, the Court will consider a number of factors in order to decide whether reasonable financial provision has been made and if not, what order should be made. These factors are referred to as the ‘Section 3 factors’ and are as follows:

  • the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
  • the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;
  • the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
  • any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;
  • the size and nature of the net estate of the deceased;
  • any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;
  • any other matter, including the conduct of the application or any other person, which in the circumstances of the case the court may consider relevant.

Is there a time limit for bringing a claim?

An applicant must start their court claim within 6 months of a grant of probate or letter of administration being used. The court does have some discretion to permit claims out of time but only where exceptional circumstances prevent this person bringing a claim earlier.

If you require further advice or assistance on this issue or any civil disputes, please contact Stephanie Doughty by e-mail at stephanie.doughty@hindle-campbell.co.uk or by telephone on 0191 296 1777.