Tuesday March 4, 2014 at 9:12am
Typically a situation like this can arise. I have a client whose mother has totally lost mental capacity. She is in hospital and will shortly be moving to a care home. There is no Power of Attorney.
I explained the Deputyship process to my client and he/she has agreed that this is what he needs to do. However, I also explained that is likely to take around six months for the application to go through.
The client is going to struggle to fund his mother’s care in the meantime. He/she has been told by someone at the hospital that he should be able to fast-track the application in order to access the money more quickly.
How can one fast-track the application, and how long will it take?
You can fast track the application but it needs to be done in a certain way.
In this scenario I will prepare the application for appointment of Deputy in the usual way but included an application for an urgent interim order (on form COP9) to access the patient’s funds to pay nursing home fees.
As to timescale, the Order authorising the proposed Deputy to withdraw funds from the patient’s account for this purpose was with us in less than a month of lodging everything at COP.
The key is you need to be quite specific in what you are asking for and will need to lodge a letter from the home setting out the fees etc. The language from the Court is useful.
“Applications for urgent interim orders should only be made in circumstances where it is unavoidable and there is a genuine need for an urgent order.”
The form COP9 should clearly state what order you are asking the court to make. Here are some examples;
It may be that there are mounting nursing home debts which are actively being chased for payment and you require urgent access to funds. You should provide the court with full details of the debt, a copy of the statement or correspondence from the nursing home, and state how much you wish to withdraw and from which account.
So, despite the problems of no power of attorney and a slow court process, you can get a solution which works.
Justin Patten, Solicitor
Sunday March 2, 2014 at 1:04pm
As was picked up in the Telegraph,
England and Wales face the prospect of new laws which would enable divorcing couples to draft their own DIY divorce settlements using an approved financial formula without having to fight it in Court. In addition there us the possibility to make prenuptial agreements to binding. The new laws are proposed by the Law Commission which advises the Government.
With respect to divorce, the Law Commission is looking at a system which is similar to Canada, where an online divorce calculator is adopted which takes such factors as the time the parties have been together and the ages of any children.
Let us cut to the nitty gritty, this is going to happen (It may be influenced by the general election on the timing), but it is part of a three fold shift in society and these laws will come into being. The reasons are:
1 The Economic Downturn – Individuals are much less likely to want (OK, they never wanted to) to pay money on lawyers and so they are looking for a cheaper option. They are looking to do the deal themselves if they can with minimal cost and fuss.
2. Emphasis on Clarity – People are not looking for a judge or a lawyer to come up with a solution. They just want an indication of the likely award and the parametres within an agreement can be reached. The current law which was created in another time is out of date when the decision was made by a Judge. This hardly happens now. It is rare to go to Court.
3. The Internet and Technology – The internet has had a profound influence on society with people having significant information online. People are used to asserting their rights and taking more control. People (rightly) do not necessarily want to have their private affairs trawled over by lawyers(and their support staff) or the Courts. Stand by for more kitchen table agreements
I do enviseage it being easier to get a divorce and I wonder how many divorce lawyers long term there will be. It will be interesting if there will be more use of divorce mediation.
Sadly the changes come too late for Victoria Luckwell, 37 daughter of one of Britain’s richest men after her ex husband was awarded a pay out of £1.2 million despite the presence of a prenuptial agreement.
Monday February 24, 2014 at 11:17am
We live in interesting times within the legal market with a number of forces against the traditional legal firm.
These have been documented by many including: opening up to non legal providers, poor economy and the internet giving people access to free advice. These factors impact all lawyers and make it more difficult to make money.
On top of this, the employment law which is the area of work that I have done for the past twelve years has some rather specific dynamics which make our job a bit more tricky including - Introduction of court fees, capping of compensation for unfair dismissa
l and in contrast to the past 20 years an increasing trend to limit employment rights rather than increase them.
The tide has certainly turned.
It is an ongoing process and my firm has reacted by not only offering mediation services such as employment and negotiation (which we have done for many years) but also we are looking at using these legal and negotiation skills to serve the elderly.
But the issue is not just for employment lawyers, but I would say for lawyers of many disciplines. We need to be far more proactive rather than reactive as a profession.
I think there will be still some niche employment law providers making good money but the firms that will succeed will have not only complementary services (non traditional law ones) but also will have a mindset which encourages greater and more prolonged connection with the client. The lawyer will not be no so reactive.
I am already aware of some law firms taking this new business model, and this is certainly something you will see more of from my firm.Justin Patten, Solicitor
Friday February 21, 2014 at 4:38pm
In this era of DIY litigants trying to save on those slightly high legal fees, I thought it would be useful to cover a topic relevant on probate.
My intelligence from other lawyers is telling me that the probate system is increasingly seeing a spate of caveats being issued. I am hearing of people who think they can change the history of the family and settle all arguments simply by lodging a caveat (without any evidence of anything) and then doing nothing---causing delay and expense to everyone concerned.
That is not very good,is it?
Hmmm, let us see what the current law of caveats is... .
What are caveats?
Caveats are a system of preventing common form grants. They are important where there are genuine concerns about the validity of a Will or the suitability of a particular person acting as executor or administrator. The caveat procedure is used to prevent a Grant of Probate or Letters of Administration being taken out in respect of a deceased's estate. The person who puts the caveat in place is called the caveator.
Why would you want to lodge a caveat?
The reasons include:
• Where the caveator wants to prevent the Grant of Probate being taken out as they believe the Will of the deceased is invalid for some reason, such as the person who made the Will did not have the mental capacity to do so, or the Will was not properly witnessed;
• Where the caveator wants to prevent a Grant of Letters of Administration being taken out on the basis that the deceased died intestate, when they believe there was a validly-executed Will in existence; or
• Where the caveator is aware of or involved in a dispute about who is entitled, or is the appropriate party, to take out the Grant of Letters of Administration.
When is it not appropriate to issue a caveat?
It is not a good idea to lodge a caveat where the caveator wishes to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This is because a claim under this Act can only be brought once the grant of representation has been taken out. This is a common error made.
What is the procedure for issuing a caveat?
A caveat can be lodged at any Probate Registry; this does not need to be at the probate
registry local to the deceased. The Probate Registry will need:
• The deceased's name, date of death and address;
• The name and address of the caveator;
• The request for the caveat to be signed by the caveator or their solicitor;
• A fee of £20
The caveat is then valid for six months. It can be renewed at the end of this period on
payment of a further fee.
How can the caveat be removed?
The caveator can remove the caveat at any time by writing to the Probate Registry. Given this a legal letter may be a good idea informing the individual that it is an abuse of proceedings to issue a Caveat inappropriately (see Parnall v Hurst  WTLR 997.)
Are the rules on caveats being changed?
Yes, there are new proposed rules that the applicant must cite the reason why he/she is objecting to the issue of the grant from a set list which mirrors the accepted defences to a probate action. Under the Draft Rules an objection will remain in place for 12 months compared to six. I believe that the new rules will result in more protracted pre-litigation skirmishes and increased costs, but we will see.
Thursday February 13, 2014 at 12:34pm
With the rising elderly population and the issues this entails, more families are planning to put a Lasting Power of Attorney (LPA) in place in order to appoint someone to look after their affairs.
LPAs allow people to choose friends or family who they would like to manage their personal and financial affairs should they lose the ability to do so – for example, if they were to develop dementia.
All well and good.
There are two types of LPA, health and welfare, and property and financial affairs.
The health and welfare LPA allows you to choose one or more person to make decisions on:
•Moving into a care home
•Refusing life-sustaining treatment
The property and financial affairs LPA allows one or more person to make a decision about money and property such as con:
•Selling your home
Typically issues flare up if ageing parents or relatives when other family members do not understand the law designed to protect the person and their interests. As a consequence disputes can arise and negotiation skills become imperative.
A well documented case of when problems arising with unhappy family members was with tv personality Jimmy Hill who suffered from dementia.
Two of Hill’s five children spoke out about the difficulties raised by his condition and the fact they were not involved in decisions regarding his care.
Frankly often the best way forward is to instruct an external person to help who does not have either a vested interest or emotional involvement in the previous family dynamics. That professional will need to have both excellent interpersonal skills, a minimum level of knowledge of law and effectively good mediation skills.
But what are those specific mediation skills that person should have? They include…
1 Establish Rapport with all the parties as soon as possible. When I conduct any mediation be that an employment or a divorce dispute, it is critical to establish credibility with everyone. In cases of this kind, communication of what is going on and why is pivotal.
2 Identify what are the obvious issues. The next evolution from establishing a good relationship with all the parties is to work out what are the issues and what are the parties wants and needs.
3 Identify what are the non obvious issues – In my experience in many disputes that I have mediated, there are issues beneath the surface which prove integral in resolving a dispute.
4. Maintain a Positive Momentum in Negotiations- Resolution of dispute scan involve going through many difficult moments. The effective negotiator has to be positive.
5 Sealing it – Tying the knot in an agreement can be the most difficult. The reality of dealing with a LPA is that it will be an ongoing issue. It is almost as though the parties are in permanent mediation. Therefore having the ability to keep the parties on board long term is key.
Sunday February 2, 2014 at 3:35pm
I have previously posted on this blog about the growing rise of inheritance disputes and how this could be negatively impacting charities in this market
But with respect to inheritance disputes, what are the trends underpinning this growing area and what can you do about it?The Law
First of all, let me be brave and deal with a key part of the law which is the Inheritance (Provision for Family and Dependants) Act 1975. which enables certain categories of persons to apply to the Court for an order to make reasonable financial provision for the applicant. (This can be via a will or intestacy
An application can only be made by the following:
•the deceased's wife or husband;
•a former wife or former husband of the deceased who has not remarried;
•a person who, during the whole of the period of two years ending immediately before the date when the deceased died, was living:- in the same household as the deceased, andas the husband or wife of the deceased;
•a child of the deceased;
•any person (not a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family;
•any person not within the above categories, who, immediately before the deceased's death was being maintained, either wholly or partly, by the deceased.
This gives a potential wide net to launch a claim. The Trends
Trends underpinning the growth of inheritance disputes include:
1 Growth in the Fragmentation of Traditional Family. Some facts worth reflecting on. According to the Office of National Statistics, in 2011 42% of marriages ended in divorce. 46% of marriages are second or subsequent marriages. What you are seeing increasingly is the blended family which contains step-children and step-grandchildren who may have an interest in making a claim.
2 Irrelevance of Intestacy- It is difficult to estimate but more than 50% of estates are intestate(No will has been provided). With this in mind, and the fact that the rules of intestacy are irrelevant to many people,(the rules were created a long time ago), people are more likely to make a claim.
3. Growth in Compensation Culture. It is a fact that over time individuals are not only much more aware of their rights but also much more willing to pursue them.
4. Financial Pressures. Yes the recession has not only made life more difficult and under financial pressure and this can create a need. If you combine this with what can be resentment of the beneficiary (or not) when there is knowledge that there is significant money at stake, then there is incentive to sue. And of course there is steady stream of lawyers willing to step up to the plate and help would be Claimants.
All these factors mean that the number of inheritance act disputes is rising.The Solution?
But how do you resolve them?
To be frank while this all pretty obvious the reality is that many disputes do run out of control where frankly the primary winners are the lawyers......
Sam Roddick, whose mother Anita left her and her sister Justine nothing in her will, and donated the Body Shop fortune to good causes, said a few years ago something which I think hits the nub of finding a solution. " "I knew when I was 16 that I wasn't going to get anything. The amount of capital she did have was so extraordinarily large that what we could have got would have been obscene."
However, she feels empathy to other children who fight for their inheritance. "Fighting about wills has nothing to do with greed. It's all to do with pain. I think most people don't know how to express the pain, and they get competitive trying to validate their importance to that person."
Ms Sam Roddick has very astute observations about the human condition. It is actually the ability of the lawyer/mediator/family member to identify the pain and deal with that that leads to disputes being resolved. If you have a big dispute, hope you have someone to help.Justin Patten, Lawyer/Mediator
Thursday January 30, 2014 at 11:07am
It has been five years since the Guardian ran a piece entitled -The £600m RIP-off - "Banks and solicitors are overcharging consumers small fortunes for sorting out wills and small estates." and the newspaper referred to Britain's first 'probate broker,' Adam Walker which led to him setting his firm Final Duties
which is still going strong now.
As the Guardian observed
, just because you are dead does not stop banks and lawyers making a fortune from you.
Then each year Britain's high street banks and solicitors were picking up £1.25bn in fees for sorting out wills. Between them, they have 88% of the market for dealing with that last testament. According to Walker, then it was a £600m a year rip-off, where banks and solicitors are charging large fortunes to sort out small estates.
Now, in the number of years which have elapsed since the Guardian article, are things any better?
Despite the trend of the internet to offer increased transparency on pricing, in my experience 95% of solicitors on the internet do not offer an unequivocal and clear pricing structure. Perhaps, the method of charging can be called evasive?
Frankly while you have some entrants into the market who offer more clear pricing these tend to be from non solicitors.
In terms of value from solicitors which is still a trusted brand, typically the would be client is offered either an hourly rate or if it the fee is fixed(still against the trend) a value at 2% to 4% of the estate value.
Or you can go with the banks. Good luck if you are looking for value. Natwest
will charge you a set up fee of £1,500 plus an additional fee charged at a rate of 2.5% on the gross value of the estate up to a maximum total charge of £15,000. The total fee is normally payable on issue of a Grant of Representation or Confirmation.
I really struggle to see how that fee can be justified but that is what you are getting charged in 2014.
You do get a more transparent line from the Co-operative probate service
which is the de facto market leader in legal probate. They assert that probate fees made simple and say they "do not believe that we will be beaten on price for any comparable service. We will aim to match fixed fee quotations for comparable services provided to us in writing from a regulated solicitor practice or trust corporation. All fixed fee quotations are subject to a minimum fee."
Unlike my firm they do not offer the price before you pick up the phone (they effectively say they will match it presumably as this firm is regulated, by all means call them)
If you want to see more detail on what is being offered by firm
(1% of estate or minimum fee £1,500) , look here.
Justin Patten, Solicitor
Tuesday January 28, 2014 at 9:53am
It is all well known that governments of all ilks have been trying to promote mediation where they can. This includes the divorce courts.
And now we witness the attempts to introduce mediation with latest part of reforms included in the Children and Families Bill, anyone seeking a court order to resolve a dispute over children, finances or splitting property must attend a "mediation information and assessment meeting".
It comes after several failed attempts by the Government to divert some of the 120,000 couples who separate in England and Wales each year to mediation.
Simon Hughes, the Family Justice Minister, recently told The Times: "Mediation works and we are committed to making sure that more people make use of it, rather than go through the confrontational and stressful experience of going to court. ...When people separate we want them to do it in the least damaging way for everyone involved, especially children. that is why we want them to use the excellent mediation services available to agree a way forward, rather than have one forced upon them."
Let us get some perspective on this.
The number of divorcing/splitting couples using mediation is absolutely dire. The numbers do one heck of a lot of communication. The number of publicly funded UK family mediations commenced in October 2013 fell by 45% compared to the same month in 2012. Figures obtained from the Ministry of Justice in response to a Freedom of Information request show that 707 mediations started in October 2013 compared with 1281 in October 2012. Therefore you have a 45% decline on a pretty low number anyway.
Some reasons for this which show that our blessed politicians are just banging their heads against a brick ball and wasting their time.....
1 Judges and lawyers and the public simply do not have either the confidence or the knowledge of the mediation process to give it a go. They do not understand it, do not necessarily trust it and do not necessarily want to go down there. Therefore thay are not exactly going to refer to people to mediation if they do not have confidence in the process. And in fact there is a very good reason why they should not use mediation. In fact the judges, the lawyers and the public are right to be wary of mediation.
2 The fundamental reason why the mediation is destined to fail to help people is that the quality of the mediators serving the public as a whole is poor and not up to scratch. Effectively anyone can become a mediator and the training is too little. There are very few full time mediators and whilst there is quality in places this is the exception rather than the rule.
I have met Simon Hughes and he seems well meaning, but until the quality of mediators is addressed( and this may be a very tall order) people are not going to use mediation.
Friday January 24, 2014 at 11:31am
It is quite nice when you see a politician taking an enlightened position on an issue. Consider Paul Burstow, the former health minsiter and Liberal Democrat peer who asserts that middle-class pensioners in care homes will be worse off than criminals in prisons if the Government successfully blocks plans to protect them under human rights laws, a former Coalition minister has warned.
He has attacked ministers for plotting to block measures to protect pensioners who pay for their own care under human rights laws. People whose care is funded by the state can use the Human Rights Act to sue unscrupulous care homes if they are left in soiled sheets, poorly fed or treated without dignity.
The House of Lords voted to extend the same protections to those in private care, but the Government wants to remove the new amendment from the care bill. Experts have warned that the moves would disadvantage the 175,000 people who pay for their care.
It is quite clear that the government is really behind the curve on this and really they need to grow up. This problem with the law will be addressed. As much as we have seen in this country the extension of say legal rights for women, homosexuals, those of any race, we are now seeing the emergence of rights for the elderly. It is a key legal issue of our times.
Monday January 20, 2014 at 11:12am
You will almost certainly need a grant if the estate includes:
• assets generally worth more than £5,000 in total (though again this figure varies)
• land or property in the sole name of the deceased, or held as 'tenants in common' with someone else
• stocks or shares
• some insurance policies
How do you apply for a grant of representation?
We are happy to do this but if you want to have go by all means look at the HMRC site
which gives guidance.
Our summary of what one can do oneself to obtain a grant of representation is below.
You have to fill in forms in addition to the PA1 Probate Application form, even if the estate doesn’t owe Inheritance Tax. The estate will only owe Inheritance Tax if it's over the threshold (£325,000 in 2013-14).
Usually, if an estate has no Inheritance Tax to pay, it will be an excepted estate. However, this is not always the case.
Then the completed IHT205 forms and the PA1 Probate Application form to your nearest Probate Registry. You will have to include the original will (if there is one), the death certificate, and the probate fee. If you've filled in form IHT400, follow the instructions on page 55 of the IHT400 guidance notes.
If the estate owes Inheritance Tax, you will not receive the grant of representation (or confirmation) unless you pay some or all of the Inheritance Tax first. The 'due date' is six months after the date of death.
Once you have paid any Inheritance Tax and sent off the forms to the Probate Registry, the process takes about eight weeks if there are no problems.
Thereafter there are three stages:
•examination of forms and documents - Probate Registry staff check the forms and documents and prepare the papers for your interview if you are attending a probate venue or they will send you the oath to take with you to a commissioner for oaths
•swear the oath - all the personal representatives who have applied for a grant of representation will need to swear an oath, either at a Probate venue or at the office of any commissioner for oaths (usually a solicitor’s office)
•probate is granted - the grant of representation is sent to you by post from the Probate Registry
After you get the grant of representation (or confirmation) and have paid any Inheritance Tax due, you can collect in the money from the estate. You can then pay any debts owed by the estate and distribute the estate according to the will or the rules of intestacy.