Lasting Power of Attorney and refunds
A power of attorney is a legal document that allows you to choose two attorneys who would assist you if you ever lose your mental capacity.
There are two different powers of attorney to choose from:
Health and Welfare – This allows your attorneys to make decisions regarding your day to day care, if you need to move to a residential home and life sustaining operations.
Financial and Property – This allows your attorneys to sign cheques on your behalf, deal with your finances and choose what to do with your property.
There are strict rules attorneys have to follow and they will not be able to do anything they wish. You can also choose to include specific instructions on the power of attorney to make your wishes and feelings clear from the outset.
It is important to anticipate making a power of attorney at any age. Circumstances can unexpectedly change at any time; for example, if you were to receive life-changing injuries, which affected your whole life. Knowing that you have got that provision in place will give you and your family peace of mind during the stressful change.
If you are interested in making a Power of Attorney, please make an appointment to see one of our solicitors who will be happy to discuss the matter with you further.
If you have made a lasting or enduring power of attorney between 1 April 2013 and 31 March 2017 you may have been charged more than was necessary.
The Office of Public Guardian (OPG) reduced the Power of Attorney application fee from 1 April 2017. They have launched a refund scheme for those who paid too much between April 2013 and March 2017. If you believe you have been affected, you have until 31 January 2021 to make a claim.
For more details and information about how to claim a refund, please follow the link: https://www.gov.uk/power-of-attorney-refund.
Written by Alaw Pari JW Hughes & Co. LLP
Making a Will
Your will tells everyone what should happen to your money, possessions and property after you die; all these things together are called your Estate.
Statistics suggest that almost two thirds of the UK adult population have no Will, despite the fact that more than three quarters of adults plan on leaving money to their loved ones. Without a Will, your assets will pass in accordance with the rules of intestacy – complex rules that dictate which family members can inherit. Even though there have been some recent changes to these rules; alarmingly, if you are not married to your partner, they will not automatically inherit any of your assets. A relative could inherit your assets instead.
To ensure that your assets go to the people you wish, you are advised to make a Will because it will make it much easier for your family or friends to sort everything out when you die – without a Will the process can be more time consuming and stressful. Writing a Will is especially important if you have children or other family who depend on you financially, or if you want to leave something to people outside your immediate family.
Making a Will also gives you the opportunity to make provision for who should look after your children and pets, state your funeral wishes and make individual specific gifts to friends and charities. It also gives you the opportunity to ensure that your estate is looked after by those you trust, by specifying an Executor.
If your family is small and you want to leave everything to them, making your will is fairly straightforward. If your situation is more complicated – for example, if you have a second family or you want to leave money and gifts to lots of people – you’ll need to plan more carefully.
It is vital to ensure that your Will is as watertight as possible and that it is legally valid. Therefore, we suggest you come and talk to one of our experienced solicitors who will draft your Will in accordance with your wishes. Contact us today on 01492 596596 (Conwy) or 01492 874774 (Llandudno).
Contemplating Divorce? The Key Essentials
Contemplating ending your marriage or civil partnership can be daunting to say the least and is for many utterly terrifying. This dispiriting prospect has led many individuals to remain in unhappy, loveless and sometimes violent marriages for many years, and for some indefinitely. Over the years practising as a divorce lawyer, it has become apparent that there are many concerns people have when contemplating divorce. For example, how will it affect the children? Where will we live? Who will get the children? How will I cope financially? Our finances are too complex, how can we sort it out? Will l have to give away all of my hard earned assets? to name a few.
All of the above are perfectly reasonable questions one should ask when making such a life changing decision. There are a lot of misconceptions about divorce with regards to how the law is applied. It is for this reason that it is vitally important to get proper legal advice from the outset. I strongly believe that the right advice at an early stage is crucial to minimising the emotional and costly impact. Ultimately, the key principle enshrined in Matrimonial law is fairness, with primary consideration being given to the welfare of any children of the family.
The opening question I ask my clients, of which I can’t provide any legal advice on is simply this: is the marriage over?
Is the marriage over? If the answer to this question is a definitive yes, then I explain that in reality they have two options: remain in an unhappy marriage (either separated or together) or proceed with formally dissolving it either by divorce or judicial separation. If the answer to the question is 'no' or ‘I’m not quite sure’ and the client intimates that there is prospect of reconciliation then, in those circumstances, I would advise the client to give their position further consideration before initiating the process of dissolving the marriage. I would highlight (which is not legal advice) that their decision should be based on what they want, i.e., there is real prospect of happy reconciliation rather than an individual reaching a decision to remain married for fear of the repercussions as a result of a divorce.
The grounds for divorce The answer to the above question will ultimately determine whether the threshold for getting divorced has been passed. In the England and Wales there is only one ground for getting divorced, and that is whether the marriage has irretrievably broken down. The person who starts proceedings is known as the petitioner and must prove that the marriage has irretrievably broken down by establishing one of the following facts;
II. Unreasonable behaviour
IV. 2 years separation with consent
V. Five years separation (no consent required)
The other party is known as the respondent. The vast bulk of divorces are petitioned based on the ‘fact’ of ‘unreasonable behaviour’. This is the law as it currently stands. However, I suspect in the not so distant future the law will change to allow non fault divorces without waiting 2 years or divorcing based on adultery. In reality, most courts and sensible solicitors adopt a pragmatic approach to ‘unreasonable behaviour’ in keeping the particulars of the unreasonable behaviour as non-inflammatory as possible. Ultimately, people should not be dissuaded from divorcing or waiting 2 years just to keep relations amicable. Sensible solicitors will explain to their clients (when acting for a respondent) that ‘unreasonable behaviour’ has to be cited as the other ‘facts’ are simply non-applicable and should not be perceived as hostile. Solicitors acting on behalf of a respondent can agree to particulars of the ‘unreasonable behaviour’ with the solicitors acting for the petitioner, again, with a view to keeping the relations as amicable as possible.
Children/Finance I advise my clients not to get carried away in disputing the main suit divorce proceedings as outlined above, particularly if the marriage has indeed come to a conclusion. The key focus from the outset should be trying to sort out the substantive matters, i.e., the arrangements for the child/children and reaching an agreement on the financial aspects. On the issue of child arrangements, if the parties are unable to reach an agreement between themselves, it is open to either party to make an application to the court for a Child Arrangements Order. The court determines such applications based on the ‘welfare principle’, i.e., the child/children’s’ interests are paramount. The initial stages of this process are most conciliatory with a strong encouragement for the parties to ultimately reach an agreement. Any such agreement can then be drawn up as a court order. In the absence of agreement, then the matter gets listed for a contested/final hearing at which point the decision will be up to a judge or magistrates and the key question for the court will be ultimately what is/are in the children’s best interests.
Turning now to financial matters, in order to assess the finances there is a disclosure requirement, i.e., the parties must disclose to each other details of their finances by completing financial statements (Form E’s), which are then simultaneously exchanged. At that stage, one can determine the extent of the matrimonial pot and thereafter try to reach a sensible and fair solution. It is very much advisable to have any agreement drawn up as a court order and lodged with the court to avoid any problems further down the line. In the absence of agreement, it is open to either party to make an application to the court for financial remedy proceedings.
Section 25 Factors In considering matrimonial finances, the court will be guided by Section 25 of the Matrimonial Causes Act 1973. First consideration for the court will be given to the welfare of any child of the family who has not attained the age of 18. Furthermore, the court will consider the following:
a) The income, earning capacity, property and other financial resources which each of the parties in the marriage has, or is likely to have, in the foreseeable future, including in the case of earning capacity, any increases in that capacity which it would, in the opinion of the court, be reasonable to expect a party to the marriage to take steps to acquire.
b) The financial needs, obligations and responsibilities which each of the parties to the marriage has, or is likely to have, in the foreseeable future.
c) The standard of living enjoyed by the family before the breakdown of the marriage.
d) The age of each party to the marriage and the duration of the marriage.
e) Any physical or mental disability of either of the parties to the marriage.
f) The contributions which each of the parties has made, or is likely in the foreseeable future to make, to the welfare of the family, including any contribution by looking after the home or caring for the family.
g) The conduct of each of the parties, if that conduct is such that it would, in the opinion of the court, be inequitable to disregard.
Family law has evolved over the course of recent years, and although in some circumstances it is necessary to litigate, proactive family lawyers will try and look for sensible ways of settling cases, if possible outside of the court arena. As alluded to above, it is most important that parties contemplating divorce obtain the right advice from the outset to avoid greater difficulties further down the line.
Joseph Hendron - Partner at J W Hughes & Co LLP
Contact: Joseph Hendron 01492 874774