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Enduring Powers of Attorney (EPAs) were documents that allowed you to nominate someone you trust (an attorney) to make decisions for you about your property and money. EPAs do not cover health and care decisions.

Only EPAs made and signed before October 1, 2007 can still be used.

When can an Enduring Power of Attorney be used?

Whilst you have ‘mental capacity’, your attorneys can use your EPA at any time provided that it is legal, it does not contain any restrictions to the contrary, and you give them permission. They might help organise your money and bills, bank and building society accounts, property and investments or pensions and benefits.

Should you start to lose mental capacity, the document must be registered before it can be used. If it contains a restriction, your attorneys may have to obtain evidence that you are losing capacity, before the document can be registered.

Once registered, the attorneys must make decisions for you in your best interests, and in accordance with any instructions you have included in the document.

How is a Lasting Power of Attorney different?

Lasting Powers of Attorney (LPAs) replaced EPAs and come in two forms: one for decisions regarding finance and property, and the other for decisions regarding health and care.

Financial decisions LPAs do the same thing as Financial decisions EPAs.

The difference is that you register your Financial Decisions LPA as soon as they are made, so there’s no delay if your attorney needs to use it. Your attorney can use the Finance LPA straight away if you give them permission.

In contrast, as noted above, your attorneys register your EPA when you start to lose mental capacity, and if there’s a restriction in the EPA, they’ll also have to get evidence at that stage from your doctor, adding a bit more delay.  The attorneys must also comply with a process of notification, ensuring the correct people are notified in priority order. They’ll have to make all reasonable attempts to notify the correct people, which could lead to further delay.

I made an EPA  – should I make a LPA for financial decisions instead?

Because the Office of the Public Guardian has limited resources, there is a lengthy delay in registering both EPAs and LPAs. In either case, the attorneys could be waiting 8 – 12 weeks for registration to be sorted. With a Financial Decisions LPA, this typically isn’t an issue because you will have made and registered it whilst in good mental health. With a Financial Decisions EPA, sometimes this is an issue – for example, if you have lost capacity very suddenly (such as in the case of an accident or stroke) and the attorneys need to quickly access to funds to pay for your care.

If you already have an EPA, it’s really up to you whether you want to take a chance that your attorney will need the EPA but it won’t be available for use – for example if they need emergency funds for care. The attorneys could apply for an urgent court order (called a Deputyship Order) in those circumstances, but it’ll still be at least a couple of weeks and it would be very expensive (at least £2,000 realistically). Some people choose to make an LPA so they have the peace of mind that it will be ready to use if it is needed.

I made an EPA  – do I also need a Health and Care Decisions LPA?

In short, 100% yes. If you don’t have this and lose mental capacity, the only option is a Deputyship Order – BUT the courts are very reluctant to grant such orders unless a specific decision needs their intervention. The Court’s view is that day-to-day care decisions are covered by provisions of the Mental Capacity Act and to make an order in most cases would be unnecessary.

Unfortunately, families often face disagreement, either between themselves or with carer organisations such as social services, as to how a person should be cared for. For example, the family might want their relative to live in assisted housing, whilst the person’s social worker may want them to live in a residential care home. In such circumstances, the only option is to apply for a court order. The family in making the application will have to notify the persons in disagreement at this stage, and those persons will typically put forward their opposing point of view. A court hearing will be necessary, and costs escalate quickly into the thousands.

In short, making a health and care LPA is a ‘no brainer’ – it saves the possibility of wasted time, stress and expense further down the line.

We offer a 1 hour free appointment at our offices or at your home address to discuss making a Lasting Power of Attorney, without obligation. At the same time, we would be happy to review your Will with you to see if it is still suitable for your needs and goals. Order our free information pack to find out more:

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Whether you’re thinking about a career in law or you’ve already started your legal qualifications, you might be wondering which route to becoming a lawyer is the best.

The traditional route

The traditional route to becoming a lawyer is the solicitor route which involves:

  • Taking a Law Degree/LL.B (3 years);
  • Completing a Legal Practice Course (1 year);
  • Completing a training contract (2 years); and
  • Completing the Professional Skills Course (12 days).

If you already have a degree, it may be possible to take a conversion course (GDL) which is typically one year, rather than doing the entire three year law degree from scratch.

This route can be completed over a longer period of time, allowing you to gain work experience and support yourself financially as you study. However, it has its challenges.

Traditional route : challenges and benefits

Whilst many still take a traditional route, it is expensive and finding a training contract can be a challenge.

The first challenge of this route is the expense. Law degrees are typically £9,250 per year for 3 years totalling £27,750, with the cost of sustaining yourself during your studies on top.

The Open University currently charges a slightly more competitive £17,568 with the option of remote study, allowing you to work at the same time. This is great if you’re entering the profession later on and have family commitments.

Student loans are available and these aren’t currently repayable until your income reaches £25,000 – but you’ll still accumulate a lot of debt.

On top of the cost of the LL.B, Legal Practice Courses are in the region of £16,000. However, if you opt for a combined LPC and LL.M, you may be able to get a £10,000 post graduate student loan to help with the costs – and universities will sometimes let you pay for the rest by instalments.

Finally, the Professional Skills Course adds around £1,500 of additional costs. However, sometimes employers cover this, particularly where they have given you a training contract.

The second challenge of this route is the availability of training contracts. Whilst 17,855 students embarked on their law degree in 2016/17, just 5,728 new traineeships were registered with the SRA in the year ending July 2016. The training contract issue is one of the reasons why the Law Degree / LPC route is to be scrapped and replaced with a new solicitor ‘super exam’, going forward. This new exam will be brought in no earlier than September 2020 – in the meantime, it is envisaged that anyone who has started on the traditional route will still be able to qualify that way.

Despite its challenges, the SRA route to qualification still remains popular. As a solicitor, you will be able to undertake reserved legal work such as preparing conveyancing documents and grants of probate, within your area of expertise. Solicitors can also set up their own law firms three years after qualifying – and it is envisaged that if changes to the SRA Handbook are introduced, this may be possible immediately after qualifying.

Alternative routes and regulators

There are many other routes to becoming a qualified lawyer, including extensive opportunities with CILEX. Your choice of route will depend on your resources and goals.

For example, if you have completed a law degree or the GDL, the Graduate Fast Track diploma offers a way to qualify as a lawyer without undertaking the traditional and costlier LPC. This requires that you take two Level 6 practice subjects and an additional course in Client Care Skills, bringing you to ‘GCILEX’ accreditation.

You’ll then need to complete three years of qualifying employment, supervised by an Authorised Person which can be a Solicitor or Chartered Legal Executive. You can then attain the title of Chartered Legal Executive (FCILEx), a qualified and recognised position.

The Level 6 Practice Units are currently £595.83 + VAT each and the client care course is currently £616.67 + VAT. It is therefore immediately obvious how cost effective this route is in comparison with the LPC. Of course, with this route, there is no option to qualify as a solicitor (unless you later take the LPC) – but you need to decide if this is important to you. Many law firms now advertise for a Solicitor or Chartered Legal Executive and you will see that both are charged at the same rate under the Government fee scale guidance.

What can a Chartered Legal Executive do?

Chartered Legal Executives perform a similar role to that of a solicitor.

When deciding on your route to qualification, it’s important to keep in mind what your goal is. Do you want to work for a solicitor’s firm, or would you like to set up your own practice? Do you want to represent clients in court, or would you like to work in-house for a private company? Your choices will help guide which route to qualification you choose.

Without the supervision of a solicitor

Chartered Legal Executives can carry out most legal work without any supervision, provided that it is not ‘reserved’. Around 80 – 85% of legal work is not reserved – click here for a list of work that is. So, for example, if you’d like to start providing advice on employment law or writing Wills for people, you’ll be able to do this after you qualify without the help of a solicitor.

With the supervision of a solicitor

Chartered Legal Executives can also carry out reserved work if either:

  • They are supervised by an Authorised Person (this means a Solicitor, or a Chartered Legal Executive who has obtained practice rights to carry out the reserved work themselves); or
  • They have applied for practice rights independently, so that they do not need supervision to carry out reserved work.

If they are supervised, they have some rights of audience – so, for example, they can appear in chambers hearings in the county court and High Court, and in the Family Court (save for before a single Lay Magistrate or bench of Lay Magistrates). They can also apply for specific wider rights of audience relating to civil, criminal or family litigation.

With independent practice rights

Chartered Legal Executives can apply for additional rights allowing them to carry out reserved work without supervision.

Independent practice rights are available for:

  • Probate
  • Conveyancing
  • Criminal litigation and advocacy
  • Family litigation and advocacy
  • Civil litigation and advocacy
  • Immigration advice and services

Chartered Legal Executives can apply to be Advocates and will have rights to appear in open court (you can find out more here).

Typically you’ll need to show competence to be awarded practice rights without supervision. However, this might be through the work you have done during your qualifying employment.

As you can see, Chartered Legal Executives have very similar practice rights to a solicitor. The main difference is that they have to apply for additional rights after they qualify if they want to carry out reserved work – whilst by contrast, solicitors can carry out reserved work as soon as they qualify.

Qualifying as a solicitor through CILEX

Chartered Legal Executives can qualify as a solicitor through the CILEX route, without needing a training contract.

Although the opportunities offered by CILEX are very extensive, some people have their heart set on the title of solicitor and for this, CILEX offers another route worth considering.

If you complete your LL.B and LPC, you can then register with CILEX as a Graduate (GCILEX). After you’ve completed 3 years of qualifying employment, you’ll be entitled to admission as a Fellow (FCILEx) Note that you can complete part of your qualifying employment whilst studying – you just need to complete the final year as ‘GCILEX’. You’ll also get 43 weeks credit for completing your LPC, although if you were working at the same time, you can’t count that employment as well.

Once admitted as a Fellow, you’ll need to complete the Professional Skills Course – but as you’re taking the CILEX route, only the core subjects are needed, reducing the completion time to 8 days (and reducing the cost). Once this has been done, you’ll be entitled to enrol as a solicitor.

Your qualifying employment must be supervised by an Authorised Person which can be a Solicitor or Chartered Legal Executive – and you’ll also need to complete a portfolio to demonstrate your skills along the way.

Whilst this route does not save you much money, it does have the huge benefit of not needing to find a traditional training contract. Once you qualify as a solicitor, you’ll be able to practice in any area of law within your competence.

This route is covered in more detail in our article Why you don’t need a training contract to qualify as a solicitor.

Conclusion

The aim of this article has been to explain some of the alternative routes to qualification and exciting practice rights now on offer from CILEX. Whilst we don’t yet know what the new solicitor’s super exam will look like (or indeed, cost), there are certainly a wide range of attractive non-traditional options for those struggling with the cost of training, those unable to get a training contract and those who need to find a flexible route into the industry whilst supporting a family.

If you have a law degree and you are interested in working for us, you may like to check out our recruitment page.

The post Chartered Legal Executive or Solicitor – which career path is for me? appeared first on April King.

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21st to 27th of May is Dementia Action Week – an event organised by the Alzheimer’s Society in support of those living with dementia, their families and carers. During the week, the Society asks that choose and share an action to support people with dementia – this might be listening to a person with dementia, being there for their loved ones or simply asking questions and learning more about this debilitating condition. To support the campaign, simply visit the website, choose an action and share the badge that is generated on social media to help raise awareness. For example:


Source: https://www.alzheimers.org.uk/

The word ‘dementia’ describes a set of symptoms that may include memory loss and difficulties with thinking, problem-solving or language. A number of diseases lead to dementia – these include Alzheimer’s disease, Vascular dementia, Mixed dementia, Dementia with Lewy bodies and Frontotemporal dementia (including Pick’s disease).

Around 850,000 people in the UK have dementia and the numbers are likely to reach more than 1 million by 2025, according to the Society. By 2051, the figure could be around 2 million. 225,000 people will develop dementia this year, which equates to one diagnosis every three minutes.

Dementia does not exclusively affect elderly people – there are over 40,000 people under 65 with dementia in the UK.

What you can do

Raise awareness: The Alzheimer’s Society is keen to help people understand the challenges those living with dementia face every day – such as being ignored in conversations, or being overlooked when it comes to planning social events. A simple tweet or Facebook share can help raise awareness of the condition and combat ignorance. Use the hashtag #DAW2018 to join in the conversation.

Look after yourself: The Alzheimer’s Society recommend you take steps to reduce your risk of dementia. These include being physically active, eating healthily, not smoking, drinking less alcohol, exercising your mind (use it or lose it!) and taking control of your health – particularly if you’ve reached mid-life. Certain health issues such as lack of sleep can increase your risk of dementia, so it’s important to get in touch with your GP and get help as soon as possible. You can find out more about reducing your risk of dementia here.

Organise your affairs: Sadly anyone at any age can lose mental capacity, whether by developing dementia or through an accident or stroke. Many people will leave it until later life to make a Will and Lasting Power of Attorney, but this can be a huge mistake. The absence of a Will means the rules of intestacy apply and these don’t always work as expected. Similarly, the absence of a Lasting Power of Attorney can have devastating consequences – accounts can be frozen with no funds available to pay expenses whilst a ‘Deputyship Order‘ is obtained from the Court.

Making a Will and LPA puts you in control of decisions relating to your future and allows you to protect your assets for your children and grandchildren. As none of us really know what the future holds, it’s important to put these documents in place early in life. If you’ve already received a diagnosis of dementia but your condition is still in the early stages, you may still be able to make a Will and Lasting Power of Attorney – however, you will need to act quickly.

Order our free information pack below to find out more – we also offer a free one hour appointment at our offices or at your home address without obligation.

Order your information pack:
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Around 1 in 2 households own a pet : which means there are about 20,000 million pets in the UK including eight million cats and eight and a half million dogs. But what happens to your pets when you die? Every year thousands die without making proper provision for their canine and feline friends and without adequate plans in place, many will not stay within the family. Fortunately, making provision is easy to do in your Will.

Naming your pet in your Will

For the purpose of your Will, your pet is considered to be personal property. The exception to this is if the pet is a working animal, in which case they might be a business asset.

You can’t therefore leave money directly to your pet – but you can nominate someone to look after them and leave a gift to that person to cover the associated expenses.

In addition to naming who should look after your pet, you can also write a letter of wishes, giving the person who will be caring for your pet all the information they need to know to be your pet’s carer. Your letter of wishes has two main purposes: first, it provides your pet’s carer with vital information such as dietary needs and medical issues, and second, it allows you to specify how you’d like your pet to be cared for. The letter can also contain important information such as microchip ID number, age and breed.

Pet charities

An alternative to nominating a friend or relative as your pet’s carer is to make arrangements with a pet charity. For example, the Cinnamon Trust provides long term care for pets whose owners have died or moved to residential accommodation which will not accept pets. Arrangements are made between owners and the Trust well in advance, so owners have peace of mind in the knowledge that their beloved companion will have a safe and happy future. It is important that your Executors are aware of the arrangements.

Another option is to carry a Canine Care Card, a scheme run by the Dogs Trust who pledge to take care of your dogs if you pass away before they do. If you have a Canine Care Card, this allows the Trust to arrange to bring your dog/s to their nearest rehoming centre. Upon arrival they will be examined by the Trust’s expert vet and cared for by their dedicated, trained staff. The Trust pledges to find your dog new owners whose lifestyle and experience match their needs. But if for any reason your dog cannot be rehomed, you have peace of mind that the Dogs Trust never puts down a healthy dog and will look after them for the rest of their lives.

Practical considerations

If you decide to plan for your pet’s future using your Will, there are a few important considerations.

Firstly, you need to adequately identify your pet. If you only have one pet, you might think that the simplest way may be to refer to them by name! If, however, you have a number of similar animals and you are leaving them to different people, you will need to include more specifics to help your Executors understand which animal you are gifting.

Keep in mind that if you name a particular pet but no longer own it when you die, the gift will fail – even if you have acquired another similar animal before you die. One way to get around this issue is to include a substitute clause such as “any other dog I own at my death”.

Next, you need to decide who will care for your pet – and it makes sense to speak to the person first. Consider the life expectancy of your pet and that of the proposed carer – it may be better to leave a pet with a long life expectancy to a younger carer.

Consider the possibility that even if the person agrees to care for your pet now, they may not be willing or able at the time of your death. You may therefore want to include substitute beneficiaries. You can require that an undertaking to care for your pet is given as a condition of the beneficiary receiving any cash gift you are leaving for the pet’s upkeep.

If you can’t decide who should take care of your pet now, an alternative is to gift your pet to your Executors along with a cash sum and write a letter of wishes indicating what the money is for and how you’d like them to choose a carer. Note that if the cash sum you have left is inadequate, your Executors have no power to make a payment from your estate for the care of your pets unless you have given them discretionary powers over the residuary estate, or unless the beneficiaries of the residuary estate agree to the payment. It is therefore important to ensure you leave a sufficient sum for your pet’s upkeep.

How much money to leave

If you plan on leaving an absolute cash gift to cover the expenses of caring for your pet, you need to work out the likely cost that will be incurred during their lifetime. The true costs are typically underestimated – for example, according to research by the People’s Dispensary for Sick Animals (PDSA) you’ll spend a staggering £21,000 to £33,000 on your dog during their lifetime, depending on size and breed. Dogs generally live for 10 – 13 years, so the outgoings could be £2,000 or more a year. Annual costs will depend on the age of your pet – older pets typically may have higher expenses for medication and vet bills, although pet insurance may be an option.

If you leave an absolute cash gift, keep in mind the effect of inflation. You may want to increase the gift – for example in line with the Retail Price Index – so that it maintains its value in comparison to the cost of living.

It is important that the gift you leave is adequate – otherwise, you may find that your chosen beneficiary is unwilling to accept the responsibility of caring for your pet, or may not follow the instructions in your letter of wishes.

Creating a trust

Rather than making an absolute gift for the costs of caring for your pet, you could create a trust for your pet’s maintenance. Whilst generally the law does not allow trusts to be created where there are no beneficiaries to enforce them, there is an exception for trusts created with the purpose of providing for the maintenance of animals. The trust is known as a “trust of imperfect obligation” because the objects of the trust – your cat, dog or other pet – will not be able to bring proceedings to compel its performance.

The law requires that the trust is limited to a period of 21 years. If there is a possibility that your pet may survive beyond 21 years from the date of your death, the trust is unlikely to be suitable.

Practically, these trusts can be problematic – for example, the question may arise of how the trustees’ expenses should be met if there is insufficient funds in the trust; or how a trustee should be replaced if they are (or become) unable or unwilling to act.

A perhaps preferable solution may be to include your pet in a discretionary trust of your residuary estate. This would put the trustees in a similar position to your Executors, had you left the pet to them – they can decide who should care for the pet, with the help of any letter of wishes you have drafted. However, they would also have the benefit of access to funds in the residuary estate. Such trusts would not be solely for the benefit of your pet so many of the practical problems that occur with a 21 year trust will not arise.

If you decide on the latter option, it is important to ensure that your pet has not already been gifted as personal property elsewhere in your Will – otherwise, they will not fall into your residuary estate.

If you’ve already made a Will

If you’ve already made your Will, it is possible to add in provisions relating to your pet using a ‘Codicil’. This is a simple document that needs to be signed and witnessed in the same way as a Will. It allows you to make amendments to your existing Will instead of drawing up a completely new one.

However, we would only recommend using a Codicil for small, simple changes – and we always recommend that you review your Will every few years anyway, to take into account changes in personal circumstances, tax rules and legislation. Why not use this as the perfect opportunity to review your Will with one of our expert team? There’s no charge for our one hour free appointments and we can usually see you at our offices or in the comfort of your own home. Fill out the form below to receive our completely free Wills information pack, without obligation.

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Unless you’ve been ignoring your inbox over the past few weeks, you’ve probably been inundated with requests to update your ‘privacy’ or ‘marketing’ preferences, in preparation for the General Data Protection Regulation (GDPR) which will apply from Friday 25th May 2018. The Regulation brings huge changes to how organisations handle your data, and your rights as a ‘data subject’. Here, we look at some of the changes that are likely to affect you.

Collecting data

Whether you’re purchasing goods, using a business to provide services or simply visiting a website, the organisations you are dealing with will likely be collecting data about you.

If you’re just a website visitor, chances are that the data will be largely generic and anonymous. This helps the organisation understand how many people visit its website, what devices they are using to view the site, which content is most useful and so on.

If the website also collects your IP address, this is classed as ‘personal data’. Personal data is any data capable of identifying you as an individual.

If you complete a contact form, phone the organisation or email them, you may also provide other data such as your name, address, phone number and email address.

In the past, you might have accidentally consented to the organisation handling this data in intrusive ways. For example, organisations may have used confusing combinations of check boxes on their website contact forms where you had to check/uncheck the right combination to avoid being sent marketing emails. Others may have said that sending you marketing communications was a condition of using their services. The GDPR changes all of that.

From Friday, your consent to communications will need to be positive – that is, you’ll have to opt-in to receive marketing communications. This means checking a box on an online form or piece of paper, or positively consenting over the telephone. They cannot use your refusal of consent as a basis for not serving you.

If you already opted into communications in the past, the organisation may be able to rely on that consent to continue contacting you – but only if the consent was obtained in a GDPR-compliant way and the organisation can prove it. In reality, it probably wasn’t – which is why so many organisations are contacting you now.

Note that if you get a message asking you to opt in and you have never contacted the organisation before, this could land them in deep water. Last year the ICO fined Honda and Flybe a total of £83,000 for sending opt-in messages to people who they could not prove had ever consented to hear from them in the first place.

Granular consent

In the past, organisations have frequently lumped consent options together – for example, asking for consent to email you, then sending you everything from service-related emails and important updates to newsletters, special offers and so on. You may have also found that your data was shared with third parties without your knowledge, thanks to a clause buried deep in their website terms and conditions.

Now, organisations have to be very specific about how they are handling your data. They must consider:

  • What data they collect
  • How it is stored
  • How long it is stored for
  • Why they collect it  / how it is used
  • Who it is shared with

This must all be set out in their Privacy Notice which needs to be accessible at the point where they take your data. If you’re making contact through their website, chances are there will be a link to the Privacy Notice on the contact form. If you’re contacting them via telephone, they may let you know where you can find their Privacy Notice (for example, on their website). This saves you the annoyance of having to sit through a lengthy recital.

Under the new Regulation, your data must be collected for “specified, explicit and legitimate purposes” and “not further processed in a manner that is incompatible with those purposes”. Consequently, you’ll probably see a lot more boxes on website contact forms going forward, with organisations asking for consent to different types of communication.

Call recording

We’ve all heard those messages at the start of phone calls ‘Your call will be recorded for quality and training purposes’ – but for most organisations, they’ll need to change.

As a result of the GDPR, organisations will now need to ask your consent to record calls, and must stop recording/delete the recording if consent is not obtained. There are a few exceptions – for example where the recording is necessary for the fulfilment of a contract with you, or necessary to fulfill a legal requirement.

Legitimate interests

Some organisations intend to rely on what the Regulation calls ‘legitimate interests’ as a basis for using your data – typically where you have already purchased a product or service from them. This means they will not necessarily contact you to ask you to opt in to future marketing.

They will be permitted to rely on legitimate interests for marketing activities if they can show that how they use people’s data is “proportionate, has a minimal privacy impact, and people would not be surprised or likely to object” to the communications. Further, they will have to conduct a balancing test to establish whether their interests outweigh yours. The test has to be documented for future reference.

In addition, if they intend to send you marketing messages via email, they will need to consider existing Data Protection legislation such as the Privacy and Electronic Communications Regulations (PECR) which sits alongside the Data Protection Act and the GDPR.

The rules on electronic mail marketing are in Regulation 22 of the PECR. In short, organisations must not send electronic mail marketing to individuals, unless:

  • the individual has specifically consented to electronic mail from the organisation; or
  • they are an existing customer who bought (or negotiated to buy) a similar product or service from the organisation in the past, and the organisation gave them a simple way to opt out both when it first collected their details and in every message it has sent.

If therefore the organisation did not give you a simple way to opt out of marketing communications when they first collected your data (for example, on a website contact form or order form), or did not give you this option in future emails, they will not be able to rely on ‘legitimate interests’ and must get your specific, granular consent to future marketing communications. If they do not, they will be in breach of the GDPR.

Your right to opt out

In many cases, you may want the organisation to continue handling your data – for example, if you have a contract with them.

However, sometimes you may find that an organisation continues to send you messages long after you’ve lost interest in their services. All organisations will also have to provide you with the option to opt out of all future communications. This information will be contained in their ‘Privacy Notice’. If you contact them and request that they stop processing your personal data, they will have to respect this.

You can of course ask an organisation to stop processing your data for the purpose of direct marketing, without affecting any contract they may have with you. They are not permitted under the GDPR to make marketing emails compulsory when you use their services.

Data portability

The GDPR introduces a new right for you to ask organisations for data in a machine readable format, allowing you to use it for various purposes. This could be useful for example in helping you to secure a better energy deal.

Automated decisions

The GDPR gives you the right to object to automated decisions being made about you where the decision has a significant effect on you. This might be, for example, where you have applied for a loan and the organisation uses an algorithm to accept or reject your application. You can ask a human to review the decision, although this is no guarantee that the outcome will be the one you want!

Serious data breaches

Under the GDPR if there is a serious breach of your data, organisations must tell you what has happened in clear terms. They must also report the breach to the Information Commissioner’s Office (ICO) within 72 hours of becoming aware of it. If the organisation reports to the ICO but does not inform you of the breach, the ICO can compel them to inform you. You may be able to claim compensation in certain circumstances.

Fines

It has been no secret that the ICO will have powers to fine those breaching the new rules severely – up to €20m or 4% of their annual global revenue, whichever is higher.

In practice, most people think it unlikely that the ICO will use the powers to their full extent and fines are expected to be on a par with those currently being issued. Under current rules the highest fine possible for a serious data breach is £500,000.

Subject access requests

Previously, you’ll probably know that you had the right to ask an organisation for a copy of the data they hold about you. However, organisations were allowed to charge a fee for providing this information, and could take up to 40 days to respond. Under the GDPR, ‘subject access requests’ will be free and must be processed within a month. But why would you want to make one?

One possible reason is if you think that an organisation is not processing your data lawfully.

Where your request to the organisation is complex, they will be able to extend the one month period to three months. However, they will have to let you know within a month of your request if they intend to do this.

If you make a request that is excessive or unfounded, the organisation has a right to charge you a fee, or to refuse to action the request.

Our Data Protection Policy and Privacy Notice

Our own Data Protection Policy and Privacy Notice sets out how we collect, use, store and share your data, together with an outline of your rights. You can view the Policy and Notice here. We are keen to be as transparent as possible and our Policy/Notice is written in plain English rather than legal jargon for that very reason. However, if you do have any questions at all, please don’t hesitate to contact us.

If you’ve received our newsletter in the past but you didn’t spot our recent email opt-in request, it’s possible you won’t receive our newsletters from now on. However, it’s really easy to sign up – just click here and complete the form. Remember, you can unsubscribe at any time by simply clicking the link at the bottom of any Newsletter edition.

The post The General Data Protection Regulation (GDPR) – what is it? appeared first on April King.

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MPs are calling for the government to give grandparents rights to see their grandchildren after a divorce. They are proposing a change to the Children Act which would give children the right to maintain their relationship with members of their extended family. In addition to grandparents, the change would also facilitate contact between aunts and uncles with their nieces and nephews.

Under current rules, relatives wishing to continue contact must ask the court for permission to make an application for access rights. There is no statutory right for a grandparent to see their grandchild and every case is considered on its own facts. Successful applications will usually result in a Child Arrangements Order.

However, during a debate last week, Conservative MP Nigel Huddleston said he was aware of grandparents who had been accused of harassment and were visited by police after sending birthday cards and Christmas gifts to their grandchildren.

He said:

“Divorce and family breakdown can take an emotional toll on all involved, but the family dynamic that is all too often overlooked is that between grandparents and their grandchildren.

“When access to grandchildren is blocked, some grandparents call it a kind of living bereavement.”

Labour’s Darren Jones noted that there was now cross-party support for a change to the law.

Children’s minister Nadhim Zahawi said the government would consider proposals that could improve the system, but the wellbeing of the child would be the overall consideration.

He stated:

“If we keep the child front and centre, we will always do the right thing.”

Grandparents’ rights were last examined as part of the independent Family Justice Review in 2011. The report concluded that Child Arrangements Orders were an appropriate solution to

“prevent hopeless or vexatious applications that are not in the interests of the child”.

A Ministry of Justice spokesperson said:

“The welfare of a child is the primary consideration for the family courts and steps are taken wherever possible to reduce the impact of family conflict on children when relationships end. We will consider any proposals for helping children maintain involvement with grandparents, together with other potential reforms to the family justice system, which are currently being looked at.”

What you can do in the meantime: (1) Mediation

If you are a grandparent who has been denied access to your grandchildren, first consider whether mediation might be helpful. This involves speaking to the child’s parents or guardians with the help of a trained mediator and trying to reach an agreement.  Mediation is a good way to preserve or rebuild relationships, in contrast with taking court action which rarely results in positive feelings between the parties.

(2) Asking the Court for permission to make an application

If mediation proves unsuccessful, you will need to ask the Court for permission to make an application. We can assist with this process.

When deciding whether to grant permission, the Court will take into account:

Nature of application: This means that the Court will consider the fact that you would like a Child Arrangements Order and what you have requested (e.g. type and frequency of contact).

Your connection to the child: This means that the Court will consider both the blood relationship that exists between you and child, and the actual relationship existing between you and the child. For example, it would be relevant if there was currently frequent contact plus contact prior to the child’s parents splitting. The more meaningful and important the connection is to the child, the greater weight the Court will give to this factor (Re M (Minors in care) (Contact: grandmother’s application) [1995] 2 FLR 86).

Any risk there might be of the proposed application disrupting the children’s life to such an extent that they would be harmed by it: “Harm” means ill-treatment or the impairment of health or development including, impairment suffered from seeing or hearing the ill-treatment of another.

The Court could deny you the right to see the child if seeing them would impair their health or development. However such an impairment would have to be quite severe for the Court to refuse contact (Re M (Minors in care) (Contact: grandmother’s application) [1995] 2 FLR 86). If there has been no contact, the Court may take the view that the children are at risk of harm by not re-establishing contact. There may be practical ways to deal with genuine concerns that still allow for contact.

Merits of the application: The test is whether you have an arguable case (rather than a good arguable case) (Re B (A child) (Care proceedings: joinder) [2012] EWCA Civ 737).  However, establishing that an arguable case exists is not in itself sufficient to obtain permission and the court will need to consider all of the relevant factors (some of which may outweigh the conclusion that there is an arguable case).

Other factors: The Court is not limited on which factors they can take into account when considering an application for permission and the factors contained in the welfare checklist could still be relevant to the decision.

(3) Applying for a Child Arrangements Order

Once the Court has granted permission, an application can be made for a Child Arrangements Order. When deciding whether or not to grant an order, the child’s welfare must be the Court’s paramount consideration.

The Court will take into consideration:

  • The ascertainable wishes and feelings of the child (considered in light of their age and understanding) 
  • The child’s physical, emotional and educational needs 
  • The likely effect on the child of any change in circumstances
  • The child’s age, sex, background and any characteristics which the Court considers relevant.
  • Any harm that the children have suffered or are at risk of suffering
  • How capable the applicant is of meeting the children’s needs 
  • The range of powers available to the Court

There is a ‘no order’ presumption which requires that the Court will not make any order unless it considers doing so would be better for the child than making no order at all.

Further, the Court must have regard to the fact that delay in reaching a decision could prejudice the welfare of the child (particularly relevant if the child is very young).

Hostility: Sometimes there will be hostility between the grandparents and the child’s parents or guardians.

In Re S (A minor) (Contact: grandparents) [1996] 1 FLR 158, the Court of Appeal held that contact should not be denied simply because the parent with whom the child lives indicated that they opposed contact and would not co-operate with a contact order.

By contrast in Re W (A minor) (Contact: application by grandparent) [1997] 1 FLR 793  the High Court upheld the magistrates’ decision to deny direct contact because of extreme hostility. The Judge encouraged indirect contact and emphasised that in the future direct contact may be appropriate.

It is clear that should the opportunity should arise, those seeking contact should make all effort to improve their relationship with the parent or guardian and ensure that they do not show any hostility towards the child’s parents/guardians before or during the proceedings. This is why mediation can be an effective way forward.

Prospect of success:

There is no presumption that contact with a grandparent is in the children’s best interests. In Re A (A minor) (Grandparent: contact) [1996] 2 FLR 153 it was suggested that for extended family members, the burden remains on an applicant to demonstrate that contact is in the child’s best interests. The burden then shifts to anyone opposing contact to show why it should not take place.

However, the courts do recognise the value to a child of contact with grandparents. In Re J (A child) [2002] EWCA Civ 1346 Thorpe LJ said that it is important that trial judges recognise the valuable contribution that grandparents make.

If you are experiencing issues with contact, get in touch for advice – call us on 08700 120 130 or email info@aprilking.co.uk.

The post Grandparents’ rights: a call for change appeared first on April King.

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A recent news report in the Times has highlighted that the Government’s online Stamp Duty calculator is providing some users with incorrect calculations, failing to take into account stamp duty discounts available on certain properties.

Whilst HMRC has responded by saying most buyers pay the correct amount, it has pointed out that the online calculator is meant to be a guide, not a final figure. However, solicitors have said they frequently use the calculator, particularly in time sensitive transactions where seeking advice directly from HMRC would mean a long turnaround time.

If you’ve paid too much stamp duty as a result of an incorrect calculation or lack of awareness that a particular relief is available, you might be able to claim a refund. We explain the different rates of stamp duty and the circumstances under which a relief or exemption may be available:

Residential property Stamp Duty rates

The Stamp Duty rates that apply for purchases of residential freehold property (i.e. a typical house) where the buyer has purchased a home previously are as follows:

  • Properties up to £125,000 – £0
  • The next £125,000 (the portion from £125,001 to £250,000) – 2%
  • The next £675,000 (the portion from £250,001 to £925,000) – 5%
  • The next £575,000 (the portion from £925,001 to £1.5 million) – 10%
  • The remaining amount (the portion above £1.5 million) – 12%

You can use the HMRC Stamp Duty Land Tax calculator to find out how much stamp duty will be due for standard transactions.

Reference: Stamp Duty Land Tax : Residential property rates

Discounts for first time buyers

First time buyers enjoy a generous discount on standard Stamp Duty rates

The First Time Buyer relief has applied from 22nd November 2017. If you’re a first time buyer, you’ll pay a discounted rate of Stamp Duty – provided that your home costs no more than £500,000. The rates for first time buyers are:

  • Properties up to £300,000
  • The next £200,000 (the portion from £300,001 to £500,000) – 5%

If you’re buying with a partner, they must also be a first time buyer to take advantage of the special rates. If your property is worth more than £500,000, you’ll pay the standard Stamp Duty Rates on the whole transaction instead.

Reference: Stamp Duty Land Tax: relief for first time buyers – HMRC guidance note

Rates for additional properties

If you already own a property, a second home in the UK would attract the 3% uplift in Stamp Duty rates

Usually, you’ll have to pay 3% on top of the normal Stamp Duty rates if you purchase an additional residential property for more than £40,000. This might be for example a property you intend to rent out, a property you’ve purchased with one of your children for their use, or a holiday home.

The rates payable are 3% above the standard rates above.

The higher rates do not apply to purchases of:

  • non-residential or mixed use properties (see below);
  • transactions where the consideration is less than £40,000; and
  • caravans, houseboats and mobile homes.

Note that if you’re purchasing a property with one of your adult children to aid their mortgage application, a number of mortgages exist that allow you to be a joint party to a mortgage without needing to appear on the title deeds. The advantage of this is that usually you will not have to pay the 3% increase in stamp duty for owning an additional property. In addition, it should also mean that as a sole purchaser who plans to live in the property purchased, your child can claim the first-time buyer’s relief. However, you’ll need to take independent legal and financial advice to satisfy yourself that this type of product is suitable for your needs. See ‘Will my son get first-time buyer stamp duty relief if we get a joint mortgage?’ ~ The Guardian.

Reference: Stamp Duty Land Tax: buying an additional residential property

Replacing your main home

Sometimes it may be necessary to move home before you’ve sold your old property – and this means you’ll end up paying the higher rate of Stamp Duty on your new home (i.e. the 3% increase for second properties). However, if you then sell your previous main home within 36 months, you’ll usually be able to claim a refund of the extra Stamp Duty paid.

Buying a home with a ‘granny flat’

Provided that your Granny flat is worth no more than 33% of the overall transaction, the higher rates of Stamp Duty for second properties should not apply.

When the Stamp Duty rules which hiked fees for the purchase of a second property were initially conceived, someone buying a property which counted as two dwellings (e.g. a house and a granny flat) would have been liable to pay the 3% Stamp Duty uplift on the whole purchase price. This would even have been the case if the main property was to be used as the buyer’s only residence.

Fortunately, an amendment was made to rectify this unintended position. According to the guidance note, the amendment:

“removes some transactions from the higher rates of [Stamp Duty] where such an annex or outbuilding is the only reason that the higher rates would apply.”

Now, the standard rate of Stamp Duty will apply where:

  • Dwelling A in the same building as, or in the grounds of Dwelling B, and
  • Dwelling B is at least two thirds of the value of all of the purchased dwellings (including Dwelling B) within its grounds.

In other words, if you purchase a home with a self-contained granny flat attached or within the grounds, you’ll pay the standard residential rate of Stamp Duty as set out above provided that the value of the Granny Flat is no more than a third of the overall price paid. If there is more than one self contained property, the overall value of the self contained properties must be no more than a third of the total price paid.

There is no actual requirement that the self contained properties be used as a granny flat. Indeed, if the value of the self contained properties is more than a third of the price paid but they are to be used as commercial lets, a claim for mixed use may be possible, which could be advantageous for higher value properties. Alternatively you may be able to claim Multiple Dwellings Relief. If you believe either may apply, we would suggest contacting the solicitor who dealt with your purchase for advice.

Multiple Dwellings Relief

Multiple Dwellings Relief can offer substantial savings in Stamp Duty, due to the multiple use of the lower rates in the Stamp Duty charging bands.

If you’ve purchased more than one property at the same time, Multiple Dwellings Relief (MDR) may assist in reducing the total Stamp Duty payable. To calculate the amount of Stamp Duty payable, you:

  • Divide the total amount paid for the properties by the number of dwellings
  • Work out the tax due on this figure
  • Multiply this amount of tax by the number of dwellings

This is subject to a minimum rate of 1%.

HMRC provides a helpful worked example:

  • You buy 5 houses for £1 million.
  • £1 million divided by 5 is £200,000.
  • The amount of SDLT you pay on £200,000 is £1,500 (0% of £125,000 + 2% of £75,000).
  • £1,500 multiplied by 5 is £7,500.
  • But that’s less than 1% of £1 million, which is £10,000. The amount of Stamp Duty you pay is £10,000.

As noted above, if you purchase a property with a granny flat or similar self contained unit where the value of the unit is more than 33% of the overall price paid, it may be worth considering whether Multiple Dwellings Relief would apply, thereby avoiding the 3% hike for second homes. We would suggest speaking to the solicitor dealing with your transaction for advice.

Non-residential property

There are different rates of Stamp Duty charged for commercial property.

If you buy commercial premises such as a shop, office, agricultural land or forest, or 6 or more residential properties bought in a single transaction, the non-residential/mixed property Stamp Duty rates apply.

These are as follows:

  • Up to £150,000 – £0
  • The next £100,000 (the portion from £150,001 to £250,000) – 2%
  • The remaining amount (the portion above £250,000) – 5%

If you are purchasing or have purchased a number of properties (e.g. 8), you will need to work out whether it is more tax efficient to claim Multiple Dwellings Relief or to pay the non-residential/mixed property rates. If you believe you have overpaid, we would suggest contacting the solicitor who dealt with the purchase for advice.

Reference: Non-residential and mixed use land and property rates

Mixed use property

Farmland, paddocks or similar which is outside of the ‘curtilage’ of your home may allow you to use the mixed use Stamp Duty rates.

Buyers who purchase a property that has a mixed use : i.e. residential and commercial or residential and farmland, may be able to use the non-residential/mixed property tax rates set out above. This may be of little advantage for lower value properties, but for higher value properties it can make a significant difference to the amount of Stamp Duty that is paid.

The relief may apply where you have land considered to be outside the ‘curtilage’ of your home and therefore not for the ‘amenity’ of the dwelling. An example might be fields that are rented to a local farmer, paddocks rented to a local riding school and so on. The relief will not apply where the land is considered to be for the amenity of the house.

Take, for example, a property purchased for £1.5m which includes a field rented out to a local farmer. If the standard residential rate of Stamp Duty were applied, Stamp Duty would be charged at £93,750:

Purchase price bands (£) Percentage rate (%) SDLT due (£)
Up to 125,000 0 0
Above 125,000 and up to 250,000 2 2,500
Above 250,000 and up to 925,000 5 33,750
Above 925,000 and up to 1,500,000 10 57,500
Above 1,500,000+ 12 0
Total Stamp Duty: 93,750

If mixed use rates are applied, the Stamp Duty would be £64,500 (based on the rules from 17 March 2016):

Purchase price bands (£) Percentage rate (%) SDLT due (£)
Up to 150,000 0 0
Above 150,000 and up to 250,000 2 2,000
Above 250,000+ 5 62,500
Total Stamp Duty: 64,500

Mixed use rates also apply to other types of property – such as a shop with a residential flat above.

If you believe you may have paid the standard residential Stamp Duty rates on a purchase that could be classed as mixed use, we would suggest contacting the solicitor who dealt with the purchase for advice.

Applying for a refund of Stamp Duty

If you want to apply for a refund because you purchased a new home before selling your old one (and therefore paid the uplifted ‘second home’ Stamp Duty rates), click here for guidance. Note that this type of refund must be claimed within 3 months of the sale of the previous main residence or within 12 months of the filing date of the return, whichever comes later.

If you are applying for a refund in any other circumstances – for example, because one of the reliefs should have applied, HMRC advise that you should write to Stamp Duty Land Tax Office, quoting the UTRN and including a copy of the original SDLT return with your claim. They ask that you:

  • explain why you think you’ve overpaid
  • say what parts of the SDLT return were wrong
  • give revised figures and confirm the amount of refund due
  • confirm who they should pay the refund to.

The deadline for claiming back tax you’ve overpaid is 4 years from the effective date of the transaction. This is usually the completion date for the purchase of the property or properties.

Reference: Stamp Duty Land Tax: online returns – claim a refund

Disclaimer: This article does not constitute financial or other professional advice and is general in nature. It does not take into account your specific circumstances and no lawyer-client relationship is formed. You should consult with a lawyer or other professional to determine what action may be best for your individual needs.

The post Could you be entitled to a refund of stamp duty? appeared first on April King.

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In a recent decision, the High Court has ruled in favour of a woman who was left nothing from her late partner’s £1.5 million estate.

The case involved a claim brought under the Inheritance (Provision for Family and Dependants) Act 1975 by 79-year-old Joan Thompson against the estate of her late partner, Wynford Hodge. The Deceased left his entire estate, valued at £1,535,060, to tenants and friends.

Ms Thompson and Mr Hodge had lived together for 42 years ‘as man and wife’. Ms Thompson was financially dependent upon Mr Hodge throughout that time and at his death. Accordingly, the Court found that she was entitled as a cohabitee to claim either under Section 1(1) (ba) or (e) of the 1975 Act that the last Will did not make reasonable financial provision for her. In either case, that meant she could claim under Section 1(2):

“such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for [her] maintenance”.

His Honour Judge Jarman QC noted:

“The real issue in this case, in my judgment, is what amounts to reasonable financial provision for Mrs Thompson’s maintenance. The powers of the court to make orders to provide for such provision are set out in Section 2 of the Act and are very wide. It is not in dispute that this includes provision for her accommodation and care needs.”

The judge went on to consider Ms Thompson’s needs, together with the needs and resources of the fourth and fifth defendants to the claim, Karla Evans and Agon Berisha – the tenants who stood to receive a substantial portion of Mr Hodge’s estate under his Will.

He further considered what obligations and responsibilities the Deceased had towards Ms Thompson and towards the tenants Ms Evans and Mr Berisha. Notably the Deceased’s earlier
Wills did make provision for Ms Thompson, and his reasons for not making provision in his most recent Will were that she would not need the money. Mr Hodge believed she would not be able to live in any property independently and would need to go into a home following his death – but in fact the most recent medical report indicated that Ms Thompson was

“…certainly fit enough to reside in private accommodation with a relevant social care package.”

Further relevant factors included the length of time and the basis on which Mr Hodge maintained Ms Thompson, the extent of the contribution, and the extent to which he assumed responsibility for her maintenance.

The Judge held that it was reasonable Ms Thompson should have Elidyr Cottage, worth £225,000, for her accommodation – a property that had originally been purchased for the couple to reside in.

He considered the question of whether Elidyr Cottage should be transferred to her outright or whether she should be offered a life interest,  referring to the recent well-publicised case of Ilott v The Blue Cross. In that case, the Supreme Court emphasised that the statutory power is to provide maintenance, not to confer capital. In the Ilott judgement Lord Hughes referred to an earlier similar case involving an adult child (Re Myers) in which the award made was not of an outright capital sum but of a life interest together with power of advancement designed to cater for the possibility of care expenses in advanced old age. Lord Hughes observed that:

“If housing is provided by way of maintenance, it is to be provided by way of maintenance, it is likely more often to be provided by such a life interest rather than by a capital sum.”

However, there are other cases where an outright transfer has been made: for example, in Negus v Bahouse a flat was awarded outright to the cohabitee of the deceased on the basis that a clean break was needed from the deceased’s family; and a similar approach for similar reasons was taken in Webster v Webster.

Noting that all cases are fact sensitive, his Honour Judge Jarman QC ruled that it was reasonable for Ms Thompson to have Elidyr Cottage outright rather than a life interest. This would allow Ms Thompson to take decisions relating to her home, such as making structural alterations or raising money without the need to seek permission. In addition, the judge awarded £28,844.68 for necessary alterations, and £160,000 for future maintenance and care. This left the tenants Ms Evans and Mr Berisha with by far the major part of a substantial estate.

Judge Jarman concluded:

“Whilst the wishes of Mr Hodge that Mrs Thompson’s family should not benefit from any provision for her should be given appropriate weight, those wishes should not hinder the reasonable provision for her maintenance. That is the mistake that he made in his letters of wishes which led to no provision at all being made.”

References: Contesting a Will

If a loved one has passed away who did not make reasonable provision for you in their Will, you may be able to make a claim against their estate. Get in touch to for a chat without obligation:

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Most people will have heard of a Lasting Power of Attorney – the document that allows you to nominate someone you trust to make decisions for you, in the event that you lose mental capacity. Lasting Powers of Attorney replaced Enduring Powers of Attorney and can be made in respect of two types of decisions: those concerning your finances and property, and those concerning your health and care.

If you lose mental capacity and you have not made a Lasting Power of Attorney (LPA), someone will have to apply to the Court of Protection for a Deputyship Order in order to make decisions on your behalf. Just like LPAs, there are two types of Deputyship Order: one concerning finances and the other concerning health and care decisions. Someone who is appointed to make either type of decisions for you by the Court of Protection is called a Deputy.

So is it better to make a Lasting Power of Attorney now; or leave those close to you to apply for a Deputyship Order in the future, should one be needed?

Nominate someone you trust

If you make a Lasting Power of Attorney, you can decide who should be in charge of your affairs in the event that you lose mental capacity. This allows you to choose someone you trust as your ‘Attorney’ rather than leaving things to chance.

Your attorney needs to be 18 or over and must have the mental capacity to make their own decisions. They could be:

  • a relative.
  • a friend.
  • a professional, for example a solicitor.
  • your husband, wife or partner.

If you don’t make a Lasting Power of Attorney, anyone can apply to the Court for a Deputyship Order – and although typically this will be a close friend or relative, it may not have been the person you would have chosen.

Consider, for example, those within your family or friendship circle that are not particularly good with money: would you want them to act? If you lose mental capacity and there is no LPA in place, there is nothing to stop them from applying to be your sole Deputy for property and finance, giving them the power to make financial decisions and investments for you.

You can appoint more than one attorney

With a Lasting Power of Attorney, you can nominate either one or a number of people that you trust to be your attorneys. You can also specify replacement attorneys, if your original choices are unable to act.

With a Deputyship Order, it may be that only one person applies to the Court for the right to make decisions for you. This would allow them to exercise all of the powers awarded by the Court, without consulting anyone else. However, Deputies do have to keep records and report to the Court of Protection each year.

You decide on the limit of powers

With a Property and Finance Deputyship Order, the Court decides what powers your Deputy should have. For example, they might grant your Deputy the power to make investments on your behalf or to sell your home.

With a Lasting Power of Attorney, you are free to limit your Attorney’s power as you choose. Provided that you include the limitations within the ‘Instructions’ box of the LPA form, the limitations will be binding on your Attorneys.

Compare:
Lasting Powers of Attorney Deputyship Order
Attorneys must follow any instructions/limitations that you have  included in the Lasting Power of Attorney. You can for example specify that they may not sell your home or make gifts on your behalf. Deputies must act within the powers afforded to them by the Court.  For a Finance Deputyship Order, typically these will include the power to manage your money, pay bills, make reasonable gifts (that you would have made), and make investments.  They may also ask the Court to grant them the power in the Order to sell your home.
You decide how your attorneys can make decisions

With a Lasting Power of Attorney, you can decide whether your attorneys must make decisions jointly, or whether they can make them ‘jointly and severally’ which would allow them to act both together and alone.

With Deputyship, the person applying to be Deputy will ask the Court to make the order either for:

  • Sole deputyship
  • Joint deputyship
  • Jointly and severally

If the Court appoints a sole deputy, they will be able to act without consulting anyone else. If the Court appoints more than one Deputy, it may allow them to make decisions ‘jointly and severally’ which means they can exercise their powers (such as making investments) without consulting each other.

Cost: Lasting Powers of Attorney v Deputyship

Perhaps one of the most compelling reasons to make a Lasting Power of Attorney now is relatively cheap cost involved, compared to the costs of applying for a Deputyship Order.

Compare:
Cost to make both types of Lasting Power of Attorney
(finance+ Health)
Cost to apply for both types of  Deputyship Order
Court fees : £164 (£82 per LPA) Court fees : £800 (£400 per order)
Legal fees : £480 + VAT (£240 per LPA) Legal fees : £900 + VAT
Cost for Doctor to complete form COP3 (evidencing loss of mental capacity) : £50 – £300
Hearing fee (if necessary) : £500
New Deputy Fee : £100 per Deputy
Security bond : depends on size of estate
Supervision fee: £325 per year in most cases

Clearly it is far cheaper to make a Lasting Power of Attorney now than for your friends or relatives to apply for a Deputyship Order at a later stage.

Finding the funds

If someone successfully applies for a Finance Deputyship Order to make decisions for you, the fees can be taken from your funds once the order is granted. However, the applicant will need to pay the fees up front, which may be a heavy burden.

If someone applies only for a Health and Care Deputyship Order, they will have to pay the fees up front and cannot recoup them from your funds.

If someone applies for both types of order, they can recoup the fees from your funds once the orders have been granted but again, must find the funds up front.

There is help available with court fees for those on very low incomes: for Finance Deputyship Orders, eligibility is based on your income/savings, while for Health/Care Deputyship Orders, eligibility is based on the applicant’s income/savings. As proof of income/savings is required for help with court fees, often applicants will have to find the funds up front anyway as they will not yet have access to accounts to provide the necessary evidence.

The issue of funding can be problematic if a Deputyship Order is needed with some urgency but nobody can pay the fees. This might happen if, for example, funds are urgently to pay for care, or a disagreement arises with your Consultant, Social Worker or the Local Authority as to where you should live.

Speed to act

Without a Lasting Power of Attorney in place, an application to the Court must be made – and this is not a quick process. Typically it takes 9 – 12 weeks to appoint a Deputy, or longer if there is a dispute as to who should act. In the meantime, there may be no access to your funds to pay bills or care fees. Urgent applications can be made if there is a genuine need – for example, if you were discharged from hospital and the funds were needed immediately for care – but even urgent applications will take 2 – 3 weeks to deal with.

With an LPA in place, your Attorneys can act for you immediately, provided that the LPA has been registered. There is no delay in accessing much-needed funds in an urgent situation.

Arguments

If you don’t have a Lasting Power of Attorney in place and a Deputyship Order is needed, will your friends and family agree on who should be Deputy? The person or persons who decide to make the application have a duty to notify all other people involved in your life and at this stage, others may want to be involved with the proceedings. Where there is a dispute, a hearing will typically be necessary, resulting in a hearing fee of £500 (plus any solicitor’s fees if the Court decides you need separate representation). Making an LPA saves stress and arguments down the line.

The requirement to involve you

Whether you make an LPA or someone has to apply for a Deputyship Order to act for you, your Attorney/Deputy has a duty to try and involve you in the decision making process.

Compare:
Lasting Power of Attorney Deputyship Order
Your Attorneys must help you to make your own decisions as much as you can Your Deputies must help you to make your own decisions as much as you can
Your Attorneys must make any decisions in your best interests Your Deputy must make any decisions in your best interests

It is simpler, cheaper and quicker to make a Lasting Power of Attorney than for a friend or relative to make an application for Deputyship in the future. To find out more, order our free information pack (click here). We offer a free 1st appointment to discuss your situation which can be at one of our 50 offices or at your home address.

The post Deputyship Order v Lasting power of Attorney: which is best? appeared first on April King.

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Overview

From 1st April 2018, Landlords renting out properties in the private sector will need to achieve a minimum energy performance rating of E on an Energy Performance Certificate (EPC).

These standards, imposed by the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015, will apply on the grant of a new tenancy or renewal of an existing tenancy from 1st April. The regulations will be extended to cover existing tenancies from 1st April 2020.

Only certain types of tenancy are caught by the Regulations, but these include the most common types: assured tenancies (shorthold or otherwise).

Under the Regulations, it will be unlawful to rent a property that does not meet these minimum energy efficiency requirements unless the property meets one of the exemptions. Landlords breaching the requirements will be subject to a penalty of up to £4,000.

Landlords will always have to carry out improvements where:

  • The property has a current, valid EPC (which will be no more than 10 years old); and
  • The property has an energy efficient rating of the property of F or G on an EPC (i.e. below the minimum energy efficiency standards); and
  • The property is required by law to have an EPC because (a) it is being rented out, or has in the past been rented out; or (b) it has been sold; or (c) it has been improved, and Building Regulations mean that an EPC is required.

The EPC must not be more than 10 years old. Therefore, if an EPC was obtained at some point in the past when it was necessary but is now more than 10 years old, there is no requirement to have another one produced. A further EPC will need to be obtained the next time the property is sold or let. This means that if the Landlord is already renting a property on a lengthy tenancy on 1st April 2020 when the Regulations start to apply to existing tenancies, and the property’s EPC has expired, there is no requirement to obtain a new EPC at this point – the requirement arises at the point he/she re-lets or sells the property.

Self-contained flats and houses require their own individual EPC when they are rented or sold. Whilst units that are not self-contained do not need an individual EPC, it is necessary to consider the status of the whole building. If the bedsit is within a property that has an EPC and that property is rated F or G for energy efficiency, improvements will need to be made before the bedsit can be let, unless an exemption applies and is registered.

Examples

1: A landlord intends to rent out a property from May 2018 to a new tenant. If the property was already required  to have an EPC and in fact, has one which is less than 10 years old, this EPC can be relied on when renting out the property. If however the EPC is more than 10 years old, or if there is no EPC (because there has been no sale or rental previously) the landlord will need to obtain an EPC. If that shows a rating of F or G, the Landlord will need to make improvements to meet the minimum energy efficiency standards unless (a) an exemption applies and (b) the exemption is registered.

2: A landlord is already renting a property under a 10 year tenancy. An EPC was required in 2016 and showed a G rating – below the minimum energy efficient standards. As the Regulations will not apply to existing tenancies until April 2020, the landlord does not need to make improvements yet. To continue to rent the property legally, she will need to improve the property to meet the minimum standards by 1st April 2020 or register an exemption if one applies.

3: A landlord rented his property in 2009 and an EPC certificate was obtained at the time. When the Regulations come into force for existing tenancies on 1st April 2020, the EPC will have expired. The Landlord is not required to obtain another EPC as the tenancy is continuing. He will only need to obtain an EPC if he relets or sells the property after the tenancy expires (whether to the existing tenant or someone else).

Exclusions

Certain exclusions apply, such as buildings that have special architectural historical merit where meeting the energy efficiency requirements would unacceptably alter their character or appearance. Another notable exclusion is residential property which is intended to be used for less than 4 months of the year.

Further exclusions apply in a number of circumstances: for example, where the landlord has undertaken all possible cost-effective improvements but the property remains below the minimum E rating, or where an appropriately qualified independent surveyor provides evidence that the works will devalue the property by more than 5%.

Business tenancies

The rules for business tenancies are different, as are the dates when the Regulations will apply. Minimum energy efficiency requirements will apply from 1st April 2018 where a new tenancy is required, but not until 1st April 2023 for existing tenancies. Note that certain property will be considered a business (i.e. non-domestic) property even though it is rented to private tenants: for example, where a house containing bedsits or a block of flats is rented out as a whole.

What improvements are required?

The type of improvement work which can be required is any energy efficiency improvement work which qualified for Green Deal and the installation of gas for an off-gas property so long as the mains are within 23 meters from the property.

It is up to the Landlord to decide which improvement works from the available options need to be carried out, with the overall objective of meeting the E energy efficiency rating as a minimum.

The Regulations only require that appropriate, permissible and cost-effective improvements are carried out. Where these prove impossible, an exemption may be available.

How can improvement works be funded?

Landlords have the option of taking a loan with one of a number of private providers via the Green Deal Finance Company, which was resurrected in 2017 – more information can be found on the Green Deal Finance website. However, like the old Green Deal scheme, interest rates are still quite high and Landlords may find a better deal with their bank.

Possible future changes

The government has proposed that there should be a cap on the amount that must be spent on upgrades of £2,500, “to protect landlords from excessive costs”. It is currently consulting on this proposal and responses are invited up to March 13 2018.

The above is intended as a general overview of the new Regulations and is not a substitute for legal advice. Further information for residential and business landlords can be found here: Guidance to landlords of privately rented domestic and non-domestic property on complying with the 2018 ‘Minimum Level of Energy Efficiency’ standard (EPC band E).

Buying or selling a property in the West Bridgford area? Visit our Estate Agency page here or call our team on 0115 870 0051. 

Looking to buy or sell a property throughout the UK? We offer competitive conveyancing services – visit our conveyancing page or call us on 08700 120 130 for a quote.

The post New law for Landlords: energy efficiency appeared first on April King.

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