COHABITEE RECEIVES QUITE A FINANCIAL SETTLEMENT!

Jacqueline Emmerson has warned before that the rights of a Cohabitee are not the same as those of a Spouse, especially upon death. However, every now and again the law favours the Cohabitee over other family members.
In the case of Banfield v Campbell, Andrew Banfield was the long term partner of Sarah Campbell who unfortunately died aged 63 on a flight to the Canary Islands. Sarah had a son James from her first marriage but her husband died when James was only 10 and Sarah was 40. Two years later she began a relationship with Andrew and he eventually moved into her home.
In 2001, after her relationship with Andrew began, she made a will leaving him £5,000 and the rest of her estate to her son.
Andrew made a claim against Sarah’s estate in accordance with the Inheritance (Provision for Family & Dependents) Act on the basis that Sarah had not made sufficient provision for him. James pointed out that he was not even sure his mother and Andrew had still been in a relationship, as far as he was concerned Andrew was more like a lodger.
Claims under this statute are not particularly common and often it is an adult child or non working partner who seeks a settlement from an estate.
Unusually in this case Andrew was not penniless, he had £10,000 spare per year and he also had savings of over £270,000. His argument was that Sarah had made provision for his housing needs during their long relationship and he now needed to be rehoused. He would need to purchase a property worth £450,000 and therefore he required a settlement large enough to allow this to happen. James stated that Andrew’s property needs would cost £220,000 and therefore he only required £100,000 by way of settlement. Either way these are huge figures when Sarah intended to benefit her son and not Andrew.
The judge determined that Andrew had not been left sufficient monies or assets by Sarah.
“The circumstances of the present case provide an example of the vulnerable position in which cohabitants find themselves if they unexpectedly survive their partner,” said the judge.
However, he went on to say that Andrew was not entitled to a lump sum absolutely. He ordered the sale of Sarah’s home, which was worth £750,000, half was to be given as a lifetime interest to enable Andrew to purchase a home for himself. Upon Andrew’s death James would then receive that share of his mother’s estate.
What a costly mess! The legal fees to take that case through the court would have been in the region of at least £20,000.
So how are you going to write your will if you are a Cohabitee?
Had Sarah and Andrew just become flat mates, should Sarah have made a new will and in that will excluded Andrew on the basis that they were no longer in a relationship?
Are you a Cohabitee living in a house owned by your partner?

Are you the owner of that property, do you have children from a previous relationship?
Ultimately life changes constantly. You should therefore review your will on a regular basis. At Emmersons solicitors we offer all of our clients a FREE review of their wills every year. It never ceases to amaze me how many of our clients do actually change their wills on a regular basis.
One of our clients popped in to have some documents signed, “How is your girlfriend?” we asked. “Oh we split up last year,” was the reply.

“Didn’t you receive our letter reminding you to review your will?”

“Oh yes but I forgot all about it.”

“So would you like your entire estate to pass to your ex girlfriend then?”

As you can imagine we were instructed to rip up that will and await new instructions.
Many of our clients come in to make a will in the company of their spouse or partner; they have children from previous relationships. Therefore it is necessary to plan their estates properly. What about a life assurance policy to cover either children or partner and a pension to benefit those still financially dependent? This is the way pension trustees tend to pay out monies in any event.
Why not plan ahead?
Ed died suddenly at the age of 44 leaving a child who lived with her mother. Ed was divorced but never had the time to sort out his financial settlement with his ex wife. So the house that they owned together passed straight to his ex wife, as a joint owner her rights came from what is known as Surviorship rather than inheritance.
After the divorce Ed bought another house for himself. He later met another woman and she moved into his home. She did not work and therefore she was financially dependent upon Ed. I knew that he did not make a will, I had reminded him to do so for years.

However, he was always really busy at work. I knew Ed quite well and I also knew that the only person he really cared about was his daughter. Let’s hope she gets on well with her mum because she will have been battling with Ed’s new partner for a share in her father’s estate.
If you don’t have a will and you are cohabiting then you should give some thought to your current circumstances. If you have a will is it fit for purpose? You can bring your will in to us and we shall give honest advice as to whether you will require a new one.

BUT SHE PROMISED THAT SHE WOULD LEAVE ME MONEY IN HER WILL!

 

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Photo by George Becker on Pexels.com

As a Probate Solicitor I pick up the pieces of the life that was. I frequently deal with estates where there were no close relatives to assist the deceased during their lifetime. In other cases there might have been one relative assisting and others have been more distant, this can be for various reasons.
I have written before about “Christine”, he or she may have been a friend or neighbour of the deceased who helped out from time to time but in effect became a carer. Some of these carers give up a lot of their time to help. They may be doing the shopping, housework, assisting with hospital visits or battling their way through the maze that is the Social Care system.
In other instances a neighbour may keep an eye on the house if someone has to go into hospital, or they may be looking after the house after the deceased has passed away. In one case that I dealt with, Madeleine had lived alone for years. She was a widow and neither she nor her husband had brothers or sisters. Her own parents had died many years ago as had those of her husband. To sum up, Madeleine was rather short of relatives.
However, she did have a good neighbour, his name was Dave. Dave had done some gardening for Madeleine over the years, he opened her curtains in the morning when she was in hospital and he turned on the lights at night. I was requested to attend to Madeleine’s estate by her nephew Bill, who lived in London. Bill was the sole beneficiary of Madeleine’s estate. Whilst the two of them got along amicably, they had not seen one another for two years prior to Madeleine’s death.
Dave said he would be happy to go on looking after the house whilst it stood empty. He also did the garden, checked the house daily and basically saved Bill quite a lot of money. He indicated to me that Madeleine had always said that she would leave him something in her will for all the help he had given her.
Guess What? There was no mention of Dave in the will. I had actually drafted the will the year before and Madeleine was quite emphatic that her only beneficiary was to be Bill. Not charities, not Bill’s children, not Madeleine’s local church, I covered all of these options.
If you were Madeleine what would you do in this case?

If you were Bill how would you deal with the situation regarding Dave?
It might be the case that Dave was actually suggesting to Madeleine that she include him in her will, she may have felt that he was in fact an absolute nuisance. It may have been that she made false promises just so that he would leave her alone. I suggested to Bill that, as Dave have saved him money in gardening fees, and had saved my fees as I didn’t have to check on the house as often, he should give Dave some of his inheritance. I therefore took a cheque round to Dave and thanked him for all of his hard work.
In another case, a paid carer was of the opinion that Ernie would definitely have left her some money. “I knew I was in that will, I was there when he made it”, she shouted at me when I advised her that Ernie had changed his will not long before his death. I was aware of the fact that the carer and Ernie had not seen each other for quite some years, in fact I was specifically called in by Ernie to remove all reference to the carer as he felt rather let down by her.
In other cases it upsets me when people are helping someone who may be frail, vulnerable and without help from their own families. You would be surprised how often this happens. These are the unsung hero’s in life. They do not seek any thanks or money. Are you being cared for by such a person? This hero is probably even helping you to remain in your own home rather than you having to move into a care home. Have you thought about that? Where are your relatives? Have you adopted the view that blood is thicker than water?
Without mentioning this to the person who is helping you why don’t you consider leaving them a token of your appreciation in your will? But don’t muddy the waters by letting your helper know that you are considering leaving them something in your will, you do not wish to create any false expectations or alter the relationship between you in any way. The same applies to family members.
You Should Avoid Making Inheritance Promises.
Otherwise you can create a situation known as Propriety Estoppel. A son recently brought a case in the High Court. He had worked on his father’s farm since the 1970’s and did so for low wages on the basis that he would inherit the farm. Unfortunately his father changed his mind and gave the farm to his other son who was a property developer. The son who had been made the promises took the matter to court and won, he was able to prove under the doctrine of Propriety Estoppel that he had acted to his own detriment for years based upon the promises that his father had made to him.
Overall, I think that my message is about doing the right thing. Look out for those who genuinely care for you and protect yourself and your family from those that seek to take advantage.

And don’t forget to review your will regularly.

Are you still in touch with your beneficiaries?
If you require any help with this issue please don’t hesitate to contact me on 0191 2846989 or je@emmersons-Solicitors.co.uk

Coercive and Controlling

For years we have been arguing that the Courts, Police, CAFCASS and others recognise that men can be the victims of domestic violence. They can also be the victims of coercive and controlling behaviour.

There are myths spoken about men. Some believe that they are responsible for the vast majority of domestic violence. It is true that a lot of the prosecutions are of men with women being the largest number of victims-but that statistic arises out of reports of domestic violence and arrests for domestic violence. Men tend not to allege domestic violence against their partner. In divorce cases we see men denied contact with their children or the contact is very strictly controlled and often the Courts go along with this on the basis that the man has agreed. Often his agreement is extracted through coercion-“if you don’t agree to this you will not see them at all. If you argue about this you will not see them at all.” At the same time the woman has alleged domestic violence or serious sexual assault-maybe even reported the man to the Police or threatened to call the Police on the basis of some trumped up allegation. Unfortunately, too often, the Police go along with this and interview the man-therefore he knows or believes that any wrong move by him in the future will have consequences. He is being controlled.

The Police, Police and Crime Commissioners and some politicians talk about domestic violence where “he” is the perpetrator and “she” is the victim. Always. Clearly there are incidents. Clearly these must be investigated. The problem is that this is not done with an open mind or based upon an understanding of how men deal with domestic violence and being coerced and controlled.

The Guidance from the Government on Controlling and Coercive behaviour is gender neutral however our experience is that the enforcement of the law is biased against men.

All we are asking for is for those involved in Family cases and in investigating and prosecuting such cases to challenge their own preconceptions and to avoid being part of the problem.

Male victims of domestic and partner abuse 30 key facts

February 2017-Produced by Mark Brooks, ManKind Initiative (Sources can be found at the end of the document)

(1) 13.6% of men in 15/16 (13.2% in 14/15) state they have been a victim of domestic abuse since they were 16 (26.3% of women in 15/16, 27.1% in 14/15). For every three victims of domestic abuse, two will be female, one will be male. These figures are the equivalent of 2.2 million male victims and 4.3 million female victims. One in four women and one in six men suffer from domestic abuse in their lifetime.

(2) 4.4% of men in 15/16 (4% in 14/15) and 7.7% of women (8.2% women) stated that they have experienced domestic abuse in 2015/16, equivalent to an estimated 716,000 male victims and 1.27 million female victims. For every three victims of domestic abuse, two will be female, one will be male.

The difference between the prevalence of domestic abuse for men and women is at its lowest since the year ending March 2005. The 3.3 percentage point difference between men and women in the year ending March 2016 compares with a peak difference of 5.1 percentage points in the year ending March 2010.

(3) 8.8% of men (equivalent to 1.4 million men) and 20.1% of women (3.3 million women) have experienced partner abuse (non sexual) since the age of 16.

(4) In 15/16, 2.8% of men (equivalent to 451,000) and 5.8% of women (equivalent to 891,000 million) experienced partner abuse (non sexual). For every three victims of partner abuse, two will be female and one will be male.

(5) There has been a significant fall in partner abuse for both men and women over the past 12 years. The percentage of men stating they experienced partner abuse in 04/05 was 4.6% (752,000) and in 15/16, it was 2.8% (451,000). For

women, the fall was from 8.6% (1.333 million) to 5.8% (891,000). There has also been a fall in domestic abuse with 6.5% of men (1 million) and 11.1% of women (1.7 million) being victims of domestic abuse in 2004/05 and 4.4% (716,000) and 7.7% for men (716,000) and women (1.27 million) in 2015/16.

(6) In 14/15, 2.7% of men (450,000) and 4.6% of women (759,000) experienced stalking. For every three victims of stalking, two will be female and one will be male. This ratio is the same when accounting for stalking by partners.

(7) In 15/16, 0.9% of men and 1.7% of women were victims of force at the hands of their partner.

(8) Generally, younger people are more likely to be a victim of partner abuse and stalking than those in older age groups. In 15/16, 3% men (5.1% women) aged 1619, and, 3% of 20-24 (5.8% women) were victims of partner abuse. 4.2% of men aged 16-19 (9.7% women) and 4.1% aged 20-24 (6.6% women) respectively were victims of stalking. The one anomaly is 45-54 year old men where 3.2% said they were a victim of partner abuse.

(9) Men who are separated or divorced are more likely to suffer partner abuse than those who are married. 10.8% of separated men (16.0% women) and 10.6% (15.3% women) of divorced men, suffered partner abuse in 15/16 while only 1.8% of married men and 2.7% of married women did so.

(10) For men in management, 2.2% said they suffered from partner abuse in 15/16 as id 3.2% in manual/routine occupations and 3.9% of men who had never worked/long-term unemployed. The female equivalent statistics were 4.2%, 7.3% and 5.4%.

(11) Men (5.3%) with a long-term illness or disability were victims of partner abuse in 15/16 compared to women (10.9%) in the same situation. For those with no longterm illness or disabilities, the figures are 2.4% (4.4% women).

(12) Of those that suffered partner abuse in 14/15, a higher proportion of men suffered from force (37%) than women (29%). For emotional and psychological abuse the proportions were 61% and 63% respectively.

(13) 12% of men and 15% of women who were victims of partner abuse suffered three or more incidents in 14/15. 1% of men had suffered 50 or more incidents as had 2% of female victims.

(14) Of those that suffered from partner abuse in 12/13, 29% of men and 23% of women suffered a physical injury, a higher proportion of men suffering severe bruising or bleeding (6%) and internal injuries or broken bones/teeth (2%) than women (4% and 1% respectively). 30% of men who suffer partner abuse have emotional and mental problems (47% women). Only 27% of men sought medical advice whilst 73% of women did.

(15) Male victims (39%) are over three times as likely than women (12%) not to tell anyone about the partner abuse they are suffering from. Only 10% of male victims will tell the police (26% women), only 23% will tell a person in an official position (43% women) and only 11% (23% women) will tell a health professional.

(16) The number of women convicted of perpetrating domestic abuse has increased seven fold since 04/05. From 806 in 04/05 to 5,641 in 15/16.

(17) The percentage of gay or bi-sexual men (6.2%) who suffered partner abuse in 2008/09 is nearly double the number for heterosexual men (3.3%). Lesbian women (12.4%) as a percentage also suffered far more partner abuse compared to heterosexual women (4.3%).

(18) In 15/16, 28 men died at the hands of their partner or ex-partner (19 men in 14/15) compared to 77 women (83 in 2014/054). For men, this was the highest since 08/09.

Offences currently recorded as homicide for victims aged 16 and over by relationship of victim to principal suspect and sex of victim, numbers, year ending March 2006 to year ending March 20161 England and Wales

05/06 06/07 ’07/08 08/09 09/10 10/11 11/12 12/13 13/14 14/15 15/16
Numbers Male victims Partner/expartner 23 29 30 32 19 20 18 16 25 19 28

Female victims Partner/expartner 90 90 80 102 94 98 89 78 86 83 77

(19) One in every five victims of forced marriage is a man (20%). (20) The average male victim calling the ManKind Initiative helpline is 43, is 5ft 9in tall and weighs 13st. The average female perpetrator is 40, is 5ft 4in tall and weighs 10st 7lb.

(21) 23 organisations offer refuge or safe house provision for male victims in the UK – a total of 110 spaces, of which 34 are dedicated to male victims only (the rest being for victims of either gender). There has been an increase as in February 2016, the figures were 18 organisations with c70 spaces, of which 24 were dedicated to male DV victims only. There are no refuge or safe houses in London.

There are no precise figures for female victims, albeit an estimate in 2010 was that there were nearly 400 specialist domestic violence organisations providing refuge accommodation for women in the UK with c4,000 spaces for over 7,000 women and children.

(22) On at least 120 occasions in 2010 a caller decided not to consider a refuge or safe house because they were too far away and would mean having to completely uproot their lives, often having to leave their children and their job behind.

(23) The NSPCC reported that 18% of boys and 25% of girls had been victims of physical violence at the hands of their girlfriend or boyfriend. 4% of boys had been victims of severe physical violence (11% of girls).

(24) In 13/14, on average high-risk victims live with domestic abuse for 2.6 years before getting help. 80% of the men who call the ManKind Initiative helpline have never spoken to anyone before about the abuse they are suffering.

(25) Men don’t leave abusive relationships for various reasons – the top reasons being: concern about the children (89%), marriage for life (81%), love (71%), the fear of never seeing their children again (68%), a belief she will change (56%), not enough money(53%), nowhere to go (52%), embarrassment (52%), not wanting to take kids away from their mother (46%), threats that she will kill herself (28%) and fears she will kill him (24%).

(26) Young women in a student survey are just as likely to be aggressive towards their partners as men, possibly even more.

(27) In 2015, 119,000 men reported to English and Welsh police forces stating they were a victim of domestic abuse. 22% of all victims who report to the police are male. In 2012, 73,524 men did.

(28) One in four victims of revenge rn are male

(29) As reported by the Scottish Government, 6.6% of male victims of partner abuse are victims at the hands of men as they are in a same-sex relationship. In terms of reporting to Scottish police, one in ten men who report as being a victim of domestic abuse state that the perpetrator is also a man. In Scotland, 20% of victims who report to the police in Scotland are male, 2% of victims are men who are victims at the hands of other men.

(30) There are c175 organisations providing services to male victims in February 2017, In 2012, the figure was c70.

30 Key Facts: Sources

ONS figures are for men and women aged 16-59 in England and Wales

The key report is: Office for National Statistics (British Crime Survey) – Focus on violent crime and sexual offences, England and Wales: year ending Mar 2016: http://bit.ly/2kqolyb The data tables can be found here: http://bit.ly/2l4azUK

(1) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb

(2) Table 4.01 on http://bit.ly/2l4azUK

(3) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 4.01 on http://bit.ly/2l4azUK

(4) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 4.02 on http://bit.ly/2l4azUK

(5) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 4.01 and 4.03 on http://bit.ly/2l4azUK

(6) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb

Table 4.04 on http://bit.ly/2l4azUK

(7) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 4.01, 4.03 and 4.07 on http://bit.ly/2l4azUK

(8) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 4.01 on http://bit.ly/2l4azUK

(9) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 4.10 on http://bit.ly/2l4azUK

(10) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 4.10 on http://bit.ly/2l4azUK

(11) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 4.10 on http://bit.ly/2l4azUK

(12) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 4.10 on http://bit.ly/2l4azUK

(12) ONS BCS Focus on Violent Crime and Sexual Offences 2014/15 http://bit.ly/1p8CGl0 Table 4.13 on Appendix Table: http://bit.ly/1M1diC5

(13) ONS BCS Focus on Violent Crime and Sexual Offences 2014/15 http://bit.ly/1p8CGl0 Table 4.15 on Appendix Table: http://bit.ly/1M1diC5

(14) ONS BCS Focus on Violent Crime and Sexual Offences 2014/15 http://bit.ly/1p8CGl0 Table 4.17 on Appendix Table: http://bit.ly/1M1diC5

(15) ONS BCS Focus on Violent Crime and Sexual Offences 2014/15 http://bit.ly/1p8CGl0 Table 4.28 on Appendix Table: http://bit.ly/1M1diC5

(16) Parliamentary questions (2004-2008) http://bit.ly/1zE1IdH , CPS FOI requests (2008-2015) and Parliamentary question (2016)

(17) British Crime Survey 2008/09 Table 3.07 (page 76) – http://tinyurl.com/7u7nvm4

(18) ONS BCS Focus on Violent Crime and Sexual Offences 2015/16 http://bit.ly/2kqolyb Table 2.06 on http://bit.ly/2l4azUK

(19) Source: Forced Marriage Unit, Home Office: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/505827/Forced_Marr iage_Unit_statistics_2015.pdf

(20) The ManKind Initiative help-line survey 2009

(21) The ManKind Initiative (February 2017) and estimates via Women’s Aid/Refuge and government reports (2010)

(22) The ManKind Initiative

(23) Partner exploitation and violence in teenage intimate relationships 2009: https://www.nspcc.org.uk/globalassets/documents/research-reports/partner-exploitation-violenceteenage-intimate-relationships-report.pdf

(24) Safe Lives. 2015. Getting it right first time: Ending Domestic Violence. 24Th February. Available at: http://www.safelives.org.uk/sites/default/files/resources/Getting%20it%20right%20first%20time%20 -%20complete%20report.pdf and ManKind Initiative Helpline (2015)

(25) Hines and Douglas in Graham – Kevan. Pp. 14

(26) Bates, Elisabeth, A; Graham – Kevan, Dr Nicola; Archer, John. 2013. Testing Predictions From the Male Control Theory of Men’s Partner Violence. Aggressive Behaviour. Vol. 9999. Pp. 1 – 14.

(27) FOI requests to 43 police forces (Ian McNicholl, The ManKind Initiative)

(28) https://www.gov.uk/government/news/hundreds-of-victims-of-revenge-porn-seek-support-fromhelpline

(29) Scottish Crime and Justice Survey 2014/15: Partner Abuse (Figure 3.3 page 38) – http://www.gov.scot/Publications/2016/05/2505/downloads and Domestic Abuse recorded by the police in Scotland, 2015-16 (page 3) http://www.gov.scot/Publications/2016/10/2442/downloads

(30) The ManKind Initiative

Produced by Mark Brooks (February 2017) © The ManKind Initiative

Buying a Property

This year we have had a tremendous year. Many many happy clients who have bought and sold property. New homes. New beginnings.

The house purchase process involves human beings at its core. The sellers and the buyers. The lawyers acting for both sides. The lender. All human beings-not machines.

There cannot be an exchange of contracts until all necessary searches and enquiries have been undertaken. Searches can take weeks to return. Enquiries depend upon co-operation by the other side and satisfactory responses. It is not just the buyer who needs to be happy to proceed. We have to give the lender a certificate of title. Despite what some estate agents might say-this isnt just an excuse to be pedantic-but it is necessary to be satisfied as our reputation and professional indemnity insurance premium relies upon it.

We have had clients who despite being told “these searches and enquires protect you AND the lender and we act for you AND the lender”, still try to fix a date for completion  before this stage is completed. Too often there are issues-missed during previous conveyancing or which have arisen since and these must be addressed.

orchid-house-buenos-aires-1

Only when issues are finalised can we agree a date for completion and exchange contracts.

Once we have the agreed completion date we have to send off a certificate of title to the lender to release the funds. We cannot do this too early as the lender does not allow it. Only if the lender is happy will the funds be released. This does not happen at 9.00am on the dot. It can take quite a few hours-especially on a Friday (as everyone wants to complete on a Friday) for the funds to work their way through the banking system to our client account.

If there is a chain then there can be last minute issues and hitches.

Its not a perfect system. We do our very best-as do most other conveyancers-to make sure the anxiety levels are at a minimum.

The best policy is to maintain patience, to remain calm, to be empathic and to be beside the phone on completion day-ready to move.

 

 

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.

Emmersons-Solicitors-Court-of-Protection
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

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