Blogs

Summary

Blogs


Court of Protection

One of the most difficult aspects of the job of a Private Client lawyer is having to decline instructions from someone who no longer has the required mental capacity to give them.

They are often brought in by well-intentioned family members who proceed to tell me what it is they, the proposed client, want me to do for them, and the client will nod their agreement to whatever is suggested. Almost invariably the family member is proposing a course of action that is in the client’s best interests, but if the client is not able to understand and give informed consent, we are unable to act for them. This type of situation often relates to the preparation of Lasting Powers of Attorney and is perhaps prompted by a sudden realisation that someone is no longer able to manage their own affairs. Unfortunately, once they have reached the point where they can no longer make decisions for themselves, it is unlikely that they will have the capacity to grant a Lasting Power of Attorney.

So what are the options for the families of people who have left it too late? This does depend to a large extent on the circumstances of the person who lacks capacity. If they do not own a property and if their only income is their state retirement pension or other state benefits, it may be sufficient for a family member to apply to the DWP to become an appointee for that person. An appointee has the authority to claim and receive benefits on behalf of the claimant, but does not have the authority to access bank accounts or deal with other savings and investments.

If the person who lacks capacity owns a property, or has savings or investments which need to be managed or accessed, it will be necessary for an application to be made to the Court of Protection for an Order appointing one or more people to be their Deputy. There are two different types of Deputy, a Property and Financial Affairs Deputy, and a Personal Welfare Deputy, and you can apply to become just one type or both types. The Order appointing the Deputy or Deputies will specify what they can do on behalf of the person who lacks capacity, and will typically include the authority to manage specified bank accounts and other investments, receive income and, if appropriate, sell their property, or make decisions about where they should live and the type of medical treatment they should receive.

Applying to the Court of Protection can be costly and time consuming. First, a Medical Assessment has to be completed, usually by a GP, in order to establish the Court’s jurisdiction. The application fee payable to the Court is currently £400 and the Deputies are required to take out insurance in the form of a Bond, the cost of which is dependent on the value of the assets under their control. Once the Order has been issued there is an assessment fee and annual supervision fees to pay, and legal fees are usually in the region of £850 plus VAT.

Should you require legal assistance from a firm with family values and a fresh approach, contact Jeffrey Mills Solicitors. E-mail: enquiries@jeffreymills.co.uk.


Before Going On Holiday

This time of year is often quite busy for us as many people are looking forward to their summer holidays and want to ensure that they have their private affairs in order before they go away should the unexpected happen.

Wills

For many people this means making sure their Wills are up to date and cover their family situation. It is particularly important for unmarried/non civil partnership couples to have Wills in place as without one their partner/civil partner will not be entitled to any provision from their estate under the rules of intestacy which apply when there is no Will.
For parents of children under the age of 18 making sure guardians are appointed for children is one of their key concerns. Appointing guardians gives peace of mind that you have chosen who would be responsible for looking after your children should anything happen to you.

I often get asked whether separate financial provision should be made for any guardians appointed in the Will. The costs of feeding, clothing, educating and generally looking after your children should not leave the guardians out of pocket because they can normally be met under the statutory powers of maintenance or advancement which will be available to the trustees of the Will and therefore should not fall upon the guardians.

Lasting Powers of Attorney

Turning to Lasting Powers of Attorney (LPAs), are not something that can be put in place at the last minute, but people are right to think about them before going away because it is not just diseases associated with old age such as dementia and Alzheimer’s that can cause the loss of mental capacity, but other illnesses and accidents. There are two types of LPA that can be made, one for property and financial affairs and the other for health and welfare matters. Once LPAs have been signed by all the relevant parties it can take up to 6 weeks for them to be registered by the Office of the Public Guardian. Therefore if you want LPAs you should get the process underway sooner rather than later, as an LPA cannot be used unless it has been registered.

Family Matters

Whilst everyone around you may seem to be looking forward to the summer holidays we know that not everyone’s family circumstances are straightforward and our family team are on hand to guide you through your divorce or separation and any associated children arrangements to try and minimise the stress you are under during such difficult times.

Should you require legal assistance from a firm with family values and a fresh approach, contact Jeffrey Mills Solicitors. E-mail: enquiries@jeffreymills.co.uk.


Holidays

It is getting to the time of year when people are starting to think about holidays, whether that is booking a holiday for the summer, or preparing for one that has been booked for a while.  Sadly, holidays can sometimes cause issues for separated parents and families.

In order to take a child abroad on holiday, you need to have the consent of everyone who has parental responsibility for that child.  A mother always has parental responsibility for their child.  Fathers acquire parental responsibility either by virtue of being married to the mother, or by being named on the birth certificate (post December 2003).

Obtaining consent to take your child abroad is normally fairly simple.  You inform the other parent that you want to take the child away, give them the details, and they agree to the plans.  Sometimes, it can be sensible to have proof of this permission.  This is generally only likely to be required in cases where the parent travelling with the child has a different surname to them.  It is not always questioned, but in case it is, it can be sensible to have a copy of the child’s birth certificate and/or a letter from the other person with parental responsibility consenting to the holiday.   Consent letters can also be useful if grandparents or other relatives are taking their grandchildren away on holiday.

If you have any concerns about whether this will be an issue when you travel, I would recommend speaking to your travel agent if you booked through one, or checking with the airline you are travelling with and check with the relevant embassy of the country you are travelling to.

If you are travelling with adopted or foster children, you should take a copy of the relevant order placing the child in your care which proves that you are that child’s legal guardian.

Sometimes, one parent will not consent to the other parent taking the child abroad.  As with everything in family law, each case is different and the advice and outcome depends on the specific facts of that case.  However, if a child spends time with both parents, there should  be no reason why either parent couldn’t take them abroad.  It is of course perfectly reasonable to expect the parent taking the child away to provide the other parent with flight and accommodation information.  If the other parents consent is not forthcoming, there is the option of making an application for a Specific Issue Order, where you ask a court to make a decision on that one issue.  Generally speaking, it is considered that a holiday is a positive and enjoyable experience for a child and therefore considered to be in the child’s best interests.

If you need any advice regarding potential holidays with children, please do not hesitate to contact me.

Should you require legal assistance from a firm with family values and a fresh approach, contact Jeffrey Mills Solicitors. E-mail: enquiries@jeffreymills.co.uk.


Blogs

BlogsBlogsBlogsBlogs