WHAT USE IS A LASTING POWER OF ATTORNEY?

Did you know that there are about 100 different types of Dementia? Sometimes, as in the case of Vascular Dementia, this can occur almost overnight. But all is not lost.

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People can live happy lives for years with Dementia. They can still make many decisions for themselves. They can remember lots of things. But what toll does this take on their partner who is caring for them? Some of you may be aware that it is often the carer who suffers physically and mentally whilst trying to look after the patient. They can and do predecease the patient.
For both parties it can be essential to have a Lasting Power of Attorney, to manage both financial affairs and health issues. This can be used immediately if that is what the Donor decides – that is the person appointing the attorney to act on their behalf.
A Lasting Power of Attorney can be used by the Attorney once it has been registered by the Donor, or their solicitor, at the Office of the Public Guardian.
In a case I am dealing with at the moment, the Donor, lets call him Ed, finds it a struggle to reach his bank. He is in a care home, he does not have access to the internet, he can no longer drive and it is making it rather difficult to visit his bank. Yet he still has a lot of banking issues to attend to.This client has not lost mental capacity and you may think that there is no need to have a Lasting Power Of Attorney under the circumstances.
However, my client is elderly, does not understand everything about banking processes, and it is a struggle to cope with physical ailments. Having moved home all of the banks need to know about his new address, social services need to know how much my client has in assets in order to determine whether or not he is self funding. At the moment I am able to obtain some of this information but the main bank will not let me move money from one account to another in order to maximise interest rates and pay for care home fees and other bills.
If this client later loses mental capacity I wouldn’t be able to find out any information because I would not have the client’s ongoing authority to act. Once I have a Lasting Power of Attorney in place I can sort out all remaining issues.
In another case, a financial institution was taking money from my client’s bank account every month yet until I obtained a Lasting Power of Attorney they would not let me know why they were taking that money. It transpired it was for life assurance, this client has no close relatives and no partner!
Then there is the issue of dealing with social services; Imagine your elderly mother, Pippa, is rushed into hospital and it transpires that she has had a minor stroke. Luckily Pippa has not lost mental capacity. However, she feels very disorientated, she can no longer move her right arm and it becomes clear that she can no longer live in her own home. Now imagine fighting your way through the system trying to sort out Pippa’s finances, trying to establish which care home she can afford. If she has assets of over circa £25,000 she will be classed as self funding. However, some assets can be ring-fenced and should not be taken into account by social services. Pippa may well be entitled to state benefits such as Attendance Allowance or she may be entitled to NHS continuing funded care, meaning that the NHS are obliged to pay for some or all of her nursing care.
If you don’t have a registered Lasting Power of Attorney in place it could take a long time to obtain all of the information that you need. Banks are unlikely to give you any information, social services have on occasion overridden the wishes of family members who do not have LPAs in force. The NHS may not deal with you if you need to challenge their funding decision.
Then there are utility companies and the council tax department to deal with, none of whom are obliged to give you any information relating to your mother’s accounts held with them.
When circumstances change for our older clients it is often quickly. There are a lot of institutions to deal with and all of them can refuse to deal with family members who have no legal standing. If you have a Lasting Power of Attorney in place, even if your relative has not lost mental capacity, then it can make life so much easier, and a lot less stressful.
I prefer it if clients have a relative who can act for them. However, increasingly there is no one available and all of the above tasks are far too much responsibility for a friend to cope with. In which case a solicitor is probably the next port of call. It is essential that the person looking after large sums of money keeps written records and can prove that they are acting in the best interests of the client. A solicitor is very heavily regulated and solicitors accounts are audited every year.
If you or your family need assistance with any of the above issues then please don’t hesitate to contact us on 0191 2846989.

DASTARDLY DIVORCE DEEDS

I have now been undertaking divorce work as a lawyer for twenty eight years. During that time I have come across some awful situations including domestic violence against both women and men as well as all sorts of horrors that have happened to children within violent or abusive households. These types of cases regularly hit news headlines. However, they are not the only type of bad behaviour that Divorce Lawyers have to deal with.
When it comes to Matrimonial Finances people can be very underhand. The cases I outline below are quite memorable and therefore I have changed some of the details.
In one case, a client was cleaning out a cupboard when the bottom fell out. Amongst the broken wood were a series of documents that caused my client acute shock. It became obvious that their spouse had been living a double life. They owned another house with another person, they had hidden assets to the tune of hundreds of thousands of pounds and worse they had another child with the other person.
My client had felt that the marriage had not been working for some time, they felt lonely and isolated. Hardly surprising when their spouse had a whole extra family to spend time with. Not surprisingly my client sought a divorce and needed to know where they stood financially.
I issued divorce proceedings based upon adultery, issued an immediate application to sort out a Financial Settlement and on the back of that issued an application to freeze the hidden financial assets before they were moved offshore. Prior to the first hearing taking place I had all of the documents served on the spouse by a private eye, in this country they are actually known as Process Servers.
I invited the spouse to appoint a solicitor as a matter of urgency. At the first hearing the judge made an order freezing the hidden assets. That way the money could not be removed from the bank until such time as we could negotiate a proper settlement.
The other solicitor took a reasonable approach, it was clear that the marriage was at an end, finances had to be sorted out and my client needed their fair share in order to move on with their life.
Then there was the case where a couple had married over fifteen years beforehand and had children together. Sam had previously been married and had older children from that marriage. Imagine our client’s surprise when she concluded that the marriage was at an end and asked us to carry out Land Registry searches to determine how she owned a series of properties with Sam. He had told her that properties had been put into their joint names once they were married. Penny had no reason to doubt Sam, after all they were in love and had children together.
However, Sam thought it would be a great idea to transfer all of the property he owned into the names of his adult children just before he married Penny. What on earth did he think was going to happen to Penny and their children if he died whilst they were still minors? If he had died under such circumstances he would have left Penny
and their children fighting a court case with his adult children. This would have cost them all tens of thousands of pounds. What a selfish thing to do to your family.
Our task was to uncover an audit trail going back over a decade and piece everything together. Sam didn’t see why Penny should receive any assets or money for her or their children upon divorce. Thankfully the judge saw this financial deception for what it was and ordered the return of assets back to Sam and eventually Penny.
Then there was the case of Hareem whose husband bought, sold and rented out properties.The couple worked together in another business and most of the profits from that business were used to purchase the investment properties. Sanjay convinced Hareem that as she was busy looking after the first business and their children it would be easier if he saw to the properties. A reasonable solution to a busy life.
Unfortunately the marriage came to an end with both parties accusing the other of domestic violence. The first thing I did was check the ownership of over thirty properties using the online Land Registry portal that we can access at our office. Hareem was listed as a co-owner of only two of the properties. I also noted that Sanjay had transferred a number of the properties into the names of his mother and brother in the previous three months. An obvious attempt to deprive Hareem of assets.
As you can imagine the judge hearing their case was not at all happy about this situation and made an order which placed Hareem back in the financial position she was entitled to.
These cases require a lot of skill as a solicitor.They need patience and the investigative skills of a top detective. I often have to pore over accounts produced for a business, which may hide a multitude of issues, I have to go back over applications for mortgages and loans, proof of funds, audit trails for money going from one business to another, completion statements for conveyancing matters etc.
If you think that you have missed the boat financially why not contact me for advice on 0191 284 6989 or
je@emmersons-solicitors.co.uk

WHAT TO DO IF YOU OR YOUR RELATIVE MOVES INTO A CARE HOME.

Moving into a care or nursing home may be a planned event and you and your family may be lucky enough to attend to everything necessary prior to the move. However, many of you may be faced with an emergency situation. A fall or a stroke may mean a period in hospital during which time it becomes clear that you or your relative cannot return to independent living. In other cases there may be an advance in dementia meaning that you or your relative cannot cope at home any longer.
A move from home may mean moving in with a relative or moving to a care or nursing home. In any event there will be a whole host of issues requiring attention:
House Insurance – if a house is to remain empty then most insurance companies will insure on the same terms for a month or two. However, thereafter the insurance will either fail entirely or will have restrictions placed upon it. Theft or malicious damage may not be covered and there are likely to be restrictions as to leaving water on and how often the property is inspected. It is therefore essential that an insurance certificate is obtained.
Council Tax – you should inform your local authority as to when the move took place. This should be done as soon as possible as there will be restrictions on the backdating of refunds. You should also check to make sure that a claim was made for a single person’s discount if relevant. Many elderly people can perhaps cope with sorting out payment for their council tax but don’t understand that they have to complete a form to obtain full discounts. In one case recently, I was able to demonstrate to the local authority there had not been anyone able to help our client to fill in her forms correctly, and that she was incapable of doing so herself, therefore a full rebate was given.
Water rates – even though the water may be left on, rather than draining down the system, the water board will usually put a stop on the account if the premises remain empty. Thus there will be no further charges. There may also be a rebate due if the house has been empty for some time. You should also determine what is to happen to the house telephone, is it to be disconnected to save further payments?
Most of us will have numerous standing orders and direct debits attached to our bank accounts. However, I bet we couldn’t name them all and some of them should have been stopped long ago. Quite often when I am dealing with bank accounts I notice a huge list of standing orders which can often add up to hundreds of pounds a month. If you or your relative need to pay for care home fees you will be looking to save money elsewhere. Is it necessary to be paying money to the likes of The Royal Mint, RSPCA, RSPB, The National Trust, The Orphaned Bear Society, The One Legged Donkey Society, you understand my point!

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It will be necessary to ask the bank to stop all standing orders other than for essential items such as house insurance. Don’t forget to ask for a full list of all payments as some are paid only once a year and may not show up on a current statement. If you don’t have a Lasting Power of Attorney in place the bank will want to meet you to take instructions. Now might be a good time to appoint an attorney to manage your financial affairs. That way you will not have to meet the bank staff each time your relative needs to rearrange your finances.
Urgent attention must be given to payment of any care home fees. Who will manage the bills, which bank account will be used to pay the fees, who will check the statements from the care home? It may mean amalgamating a number of bank accounts to make the task easier.
Have you applied for all relevant state benefits such as Attendance Allowance? A social worker or Age UK can assist with this.
Finally, there is the issue of the family home. I have met people who live in care homes and who understandably do not wish to give up their own home. In one case a lady told me that she was working hard to get back to her own home; she had been in a nursing home for over two years. In all of that time her home had been empty and was deteriorating. Perhaps the property should be rented out? Should it be sold, if so who will deal with the sale? Who will deal with the huge task of clearing out the property?
If the property is to be sold then does the owner have sufficient mental capacity to deal with this? If not a Power of Attorney can be used. If there isn’t one in place then someone is going to have to apply to the Court of Protection to become a Deputy. Once a Deputy is appointed they can then deal with the sale.

Access to Justice

The CMA produced a report some time ago about the “need” for greater transparency in the legal market.

This is “code” for “there really ought to be more competition so that legal services are cheaper because people tell us they think legal services are expensive and we need to improve access to legal services and our previous attempts have failed in that we tried to encourage innovation and competition through new entrants (known as Alternative Business Structures) but they havent taken up the challenge because there is too much regulation.”

The Legal Services Board promotes this dream of competition and innovation and has insisted taht the various legal regulators make sure it happens.

The Solicitors Regulation Authority has gone for this with some gusto and is suggesting that Solicitors could work for non-regulated bodies so the Solicitor would be regulated but the body might not be and in that way people might be able to access legal advice at a reasonable fee.

None of these organisations address the real issue. Successive Governments have cut legal aid. They have cut the scope of legal aid (ie limited the legal issues for which it is available) and have restricted the financial criteria (ie the income and capital limits have been reduced above which a person cannot get legal aid) and have cut the fees payable to a solicitor or barrister who undertakes such work and introduced a whole series of fixed fees so not matter how much work one does on a file one is paid a fixed fee.

Legal aid gives people power to challenge big business, local authorities, Government and all the institutions of the State.

In a recent Law in Action interview the current Lord Chancellor (who has only just been appointed) got it wrong when he said that legal aid would have been available to the residents of Grenfell Tower in relation to safety issues but no-one applied for it. In fact it isn’t available for anyone in relation to housing safety issues UNLESS there is a disrepair issue which raises an issue about a serious safety matter-which didn’t apply in the Grenfell Tower situation. This explains why no-one applied for legal aid (on which point he was entirely correct).

Legal Aid has been attacked for years as a gravy train for lawyers. As an unworthy assistance to unworthy people who should fund their own cases or who should rely upon the State’s decisions because the State makes correct decisions which shouldn’t be challenged. However statistics in relation to “fit for work” cases show a different picture. People who have the benefit of legal aid can assert their rights. Legal Aid is granted by an independent body The Legal Aid Agency and there are strict rules (quite rightly). Too many people who crticise legal aid dont know how it works or how it is granted and don’t know that only certain law firms can apply for it on behalf of clients or indeed that it is not paid at an hourly rate but on a fixed fee basis.

The problem is that someone somewhere decided the legal aid spend should be controlled and limited and so cuts were made. The myth was created that legal aid had gone beyond what was originally intended for it (which is a lie), that it was easily obtained (another lie) for weak cases (another lie) and that others were held to ransome by the person with legal aid (not in my experience). This means people cannot enforce their rights and so there is limited and resticted access to Justice which means the rich can take whatever legal action they wish but the rest of Society cannot. How can this be justified?

The current BIG LIE is that the UK is awash with whiplash claims and that this must be stopped. However the data and the argument are about as real as the Wizard of Oz. the ABI has conned the Government and deliberately mis-stated the truth. Here’s the evidence in rebuttal http://www.legalfutures.co.uk/latest-news/academic-debunks-claim-uk-whiplash-capital-europe

And if someone not eligible for legal aid (anyone on more than £37,500 a year) has to pay for their own representation, a nasty shock awaits: even if the defendant is acquitted of all charges, there is now no automatic reimbursement of costs. To recoup anything, such defendants must first apply for legal aid, be rejected, and hire a lawyer privately; yet upon acquittal they can then claim back costs only at legal aid rates.

Since the CPS unusually instructed senior Treasury Counsel in his case, Mr Evans understandably felt obliged to use representation of equal quality. I understand that he has been left with a £100,000 bill for which no refund is available, despite his acquittal. If he and his fellow MPs believe that to be unjust, they might want to have a word with their parliamentary colleague who seemingly supports the principle of making defendants pay for the privilege of being found not guilty: the Justice Secretary, Chris Grayling

Motoring Lawyers Are Us

If you have been prosecuted for drink driving, you may have undertaken a web search to see if you can get off. There are lots of on-line “bar-room lawyers” with stories of someone they know who knows someone who has a friend who met someone who read about someone who “GOT OFF”. They then tell you how they did it.

Unfortunately some of my profession have adopted a similar approach and produce on-line guidance and advice which is the written equivalent of “snake oil”. These firms charge thousands of pounds for what will often turn out to be bad advice and an inevitable guilty plea and a large costs bill from the Crown.

How do they get away with it? Well, they rely upon the inability of the Police and the CPS to organise themselves properly. Unfortunately we operate in times when resources are scarce. This means that some Police Forces don’t invest in skilled and experienced staff who can prepare cases properly, who can identify issues early and seek to correct them. It is also the case that often such cases are prosecuted by inexperienced advocates or agents who are given the case the night before or on the morning of the hearing and who cannot prepare and who cannot correct any flaws. The Courts are under pressure to manage cases effectively and, in essence, to finish the case off as soon as possible. It doesn’t really matter if this results in an injustice as money has been saved. Some defendants are advised to take the case to trial in the hope that the prosecuting authorities-aided by a Court eager to finish the matter (it’s a results based industry!!) willmake a huge cock-up and the defendant will be acquitted.

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For some time the Higher Courts have been trying to stop this nonsense. There have been efforts made in relation to motoring cases of all sorts to establish defences based upon a failure of the Police to follow statutory requirements. Some of these are real and do exist-eg the fact that a Police Officer must give a warning to a suspect before requesting samples of breath that failure to do so may lead to a prosecution or a failure to give a sample of blood or urine to a suspect so he may instruct his own expert to carry out an analysis.

The point is however that unless there is real evidence of a failure of the Police to comply with statutory obligations {some times erroeously these are called “technicalities” or a “loophole”, when in fact they are legal requirements} then such arguments will fail-and should not in fact be advanced.

The recent case of The Queen on the application of Hassani v West London Magistrates’ Court [2017] EWHC 1270 (Admin) [CO/5138/2016] makes this very clear and indeed refers to the case of Cipriani where again it was emphasised that challenging prosecution evidence in the hope of showing there has been a failure to comply with statutory requirements must not be undertaken by the defence unless there are real reasons to be concerned about how the Police conducted themselves.

My hope is that the Bar Standards Board and the Solicitors Regulation Authority will read these cases and discipline those who advance such ridiculous defences. I hope that Court Legal Advisers and Magistrates and District Judges will report solicitors and barristers to the relevant Regulator where such arguments are advanced without merit.

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Often Solicitors will write standard letters querying aspects of the Police case without any basis whatsoever and before considering the MGDDA (the record of the intoximeter process) or any statements. Often Counsel will advance such arguments despite the fact that there is nothing upon which to challenege the Police, but because Counsel has been instructed so to do-and is getting a fee. In the meantime the Defendant is being charged huge sums-and the fact he might be happy to spend this money is not in fact the point. Such arguments, based on nothing but hope, bring the Justice system into disrepute.

On the other hand we have had circumstances where people have said to us that they are not speeding and that the reported speed of their vehicle is inaccurate. We have had cases where clearly the speed camera is not working properly. We have had evidence of the defect because the client has independent evidence of speed and location from a GPS system operated by an employer because the client has driven a works vehicle.

The prolem here though is that if the client challenges the Police case in Court he will not recover all his costs because the State only has to pay based upon legal aid rates and private client fees are not based upon legal aid rates. The punishment is 3 penalty points and a fine of £100 or so. Police Forces refuse to accept the evidence that the speed camera is defective and so people plead guilty by post and accept a Fixed Penalty out of convenience and to save money. Of course it suits the Police because the fact that a speed camera is defective is hushed up. It suits the Court service because they haven’t had to spend time trying to address issues of Justice. Again, the Justice system is brought into disrepute because the system is rigged to make challenging the State economically unrealistic for the vast majority of people.

But, I’m talking here about cases where there is real evidence that the systems are not working. That is a huge difference to cases where the defendant and his lawyers hope to find some issue along the way.

There are perfectly good arguments that can be presented to a Court in a proper way to mitigate the consequences of accumulating penalty points or of drink driving or of a speeding offence. It is how this evidence is brought before teh Court that matters. Too many barristers think a good hardship argument is best presented by them with the client merely confirming on oath what the barrister has said. This is bad practice and ought to be discouraged by Court Legal Advisers and The Bench. It is lazy at best and a negligence claim at worst and does not afford the Court the opportunity to assess the defendant properly.

My advice is, avoid the online motoring law experts with flashing websites and promises of defences who charge thousands of pounds. There reported success rates will be as valid as their arguments before the Court.

Instead seek advice, in person, from a local criminal solicitor who charges a reasonable fee (lets say £700-£1500) and who knows what they are talking about. There are plenty of them, in your local town and they aren’t there to rip you off. If they start talking about all sorts of defences before you have explained the circumstances or before they have seen the case papers and they suggest that they can get you off then walk out and try somewhere else.

If there are any High Street Solicitors who wish to form a referral network based upon giving proper motoring law advice that complies with case law and the Criminal Procedure Rules then do get in touch 0191 5676667 michael@emmersons-solicitors.co.uk

 

 

 

 

SEPARATING? WHAT ABOUT YOUR CHILDREN?

If you are married, separating and you have children, it is possible – and indeed likely – that one or both of you will wish to pursue a divorce through the Family Court; you may even wish to reach a Financial Settlement through the Courts – whether by making an application, or submitting a pre-agreed ‘Consent Order’. The arrangements for your children, however, are perhaps less likely to have been dealt with formally by a Court.
Where the breakdown of your relationship was amicable, this can work seamlessly.

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However, as we often see at Emmersons, if there is residual bitterness between separating parents, things can become very turbulent for the children involved. When the adults who share Parental Responsibility for a child no longer get along, it can be very easy for children to become caught in the crossfire, or to be treated like pieces of property – pulled this way and that by adults whose animosity towards each other has made them lose sight of what is truly important.

It is something of a myth that the concept of Parental Responsibility gives you as a parent a strict right to spend a fixed amount of time with your children, or to vary the arrangements for your child without consideration for how this will affect them; the law in this area is in fact far more child-centred, and the focus is very much on the duties and responsibilities of you as a parent to the child, rather than the rights of a parent over the child.

If you are the ‘primary carer’ for your children after the breakdown of the relationship – i.e. they live with you, and you provide their day-to-day care – you might encounter a number of difficulties: your ex-partner might remove the children from school without your knowledge or agreement; they might take the children to spend time with them, and later refuse to return them to you; or, they might aggressively demand that you allow them to spend increasing amounts of time with the children, asserting their ‘joint parental rights’, or something similar.

The difficulty in situations such as these is that you may feel that you have nowhere to turn. As upsetting as the ordeal may be for you and your children, their school, Social Services, and even the Police may be unable to intervene in what is essentially a private matter between adults with parental responsibility; but that’s not to say that you are powerless to act where the arrangements for your children spending time with your ex-partner have become fraught. In circumstances such as these, you could consider making an application to the Family Court for a Child Arrangements Order.

Child Arrangements Orders, made by the Family Courts, cover the arrangements for who a child will live with, who they will spend time with, and for how long. Once such an order is made, a party who breaches its terms could be fined, made to undertake unpaid work, or, in an extreme case, found guilty of contempt of Court, and committed to prison. These orders can therefore provide some much needed certainty for you and your children.
When considering applications of this nature, the Court’s main priority is the welfare of the children involved, and Judges will consider: how capable are each of the children’s parents of meeting their physical, emotional and educational needs? What are the wishes and feelings of the children? And, what is the likely effect on the children of a change in their circumstances?
The Judges hearing Child Arrangements Order applications adhere to what is called the ‘no order principle’, which essentially means that they will not make an order unless there is some tangible benefit to the children involved. An application made simply to put the status quo on a more formal footing is therefore unlikely to succeed; however, if you are worried that the arrangements for your child have become so tense as to be upsetting to your child, you should consider seeking specialist advice.
Clearly applying to the Courts is not something to be taken lightly, and you may feel you need advice as to your other options before deciding how best to proceed. Our family team will endeavour to deal with your enquiries with sensitivity, and will always attempt to resolve things in the most amicable way possible. Many of our clients have found that simply obtaining advice as to their options empowers them to address difficulties as they arise, and we are often able to find effective solutions to our clients’ problems without the need to resort to the Court.

IMG_5349 Jacqueline Emmerson, Managing Director
Should you require assistance in relation to the arrangements for your children, then don’t hesitate to contact us on 0191 2846989 or 0191 5676667.

www.emmersons-solicitors.co.uk

EFER House 137a Back High Street Gosforth NE3 4ET

ACER House 52 John Street Sunderland SR1 1QN

Using a Mobile Phone in the car

Today the penalty for using a hand-held mobile device or other hand-held communication device whilst driving has increased to 6 penalty points and £200 fine.

If you are a newly qualified driver and have held a full UK driving licence for less than 2 years then your licence could be revoked and you have to start the whole licence application process again.

If you are supervising a provisional driver and that driver uses a hand-held mobile phone whilst driving then you too could get 6 penalty points and a fine.

The position of employers is interesting given the legislation s41D Road Traffic Act 1988 refers to those who allow or permit the use of a hand-held device whilst the driver is driving. If your employees drive for a living and you expect them to communicate with you or customers then not fitting a hands-free system (or ensuring the vehicle has one) could lead to prosecution. Apart from that, not training your staff on what is expected of them when they drive for you, is a huge failing and could lead to prosecution or indeed serious harm to your brand.