Author: Nicola Codd
What to do if someone lost capacity with no power of attorney in place? (Deputyship)
Many people don’t like to think of a time where they may not have the mental capacity to make their own decisions, people seem to have the attitude that it will never happen to them. This could not be further from the truth. More and more people are being diagnosed with medical conditions that effect their ability to make their own decisions. Although some medical conditions may be a gradual deterioration in capacity, there are also circumstances where capacity can deteriorate rapidly.
The best thing to do would be to make a Lasting Power of Attorney whilst you still have capacity, but this is not always the way things happen.
The process to obtaining a deputyship is more expensive and takes much longer than a Lasting Power of Attorney, so if you take anything from this article it is that you should seriously think about making a Lasting Power of Attorney, but I will explain the process for if you lose your capacity without an LPA being in place.
Just like Lasting Power of Attorney there are two different types of deputyships.
1. Personal Welfare Deputy
2. Property and Financial Affairs Deputy
Who can be a Deputy
The person wishing to be a deputy would need to be over the age of 18 years. Be of demonstrably good character. This means that you might not be able to be a deputy if you have a criminal record, have been declared bankrupt. Also, you will need to know the person well if you are going to act as someone’s deputy.
Responsibilities of a Deputy
A Deputy will be responsible for helping you make decisions or making decision on your behalf. Your deputy should consider your level of mental capacity every time they make a decision for you. They cannot just assume it is the same at all times and for all kinds of things.
When a deputy is making a decision, they must:
- make sure it’s in the other person’s best interests
- consider what they’ve done in the past
- apply a high standard of care – this might mean involving other people, for example getting advice from relatives and professionals like doctors
- do everything you can to help the other person understand the decision, for example explain what’s going to happen with the help of pictures or sign language
They must not:
- restrain the person, unless it’s to stop them coming to harm
- stop life-sustaining medical treatment
- take advantage of the person’s situation, for example abuse them or profit from a decision you’ve taken on their behalf
- make a will for the person, or change their existing will
- make gifts unless the court order says you can
- hold any money or property in your own name on the person’s behalf
Who to apply
When you are deemed to have lost capacity, your loved one who wishes to be appointed as your legal deputy will need to obtain a COP3 capacity assessment by a doctor or specialist. The COP3 is the name of the form that will need to be submitted to the Office of the Public Guardian.
When the COP3 is complete and it has been established that you lack capacity, a COP1 application form will need to be completed by your proposed deputy, this will detail what they are apply for, be it one or both of the deputyships available.
Your proposed deputy will also need to complete a COP4 deputy’s declaration to declare that they wish to be appointed as your deputy.
Finally, a COP1B form may be needed to submit any supporting information to the application.
What happens after the application is submitted (deputy)
The court will aim to send a stamped copy of the application within a week of receiving it. This means the application is being considered (it has been ‘issued’).
Within 14 days of the application being issued, the proposed deputy must tell (sometimes called ‘serving’) the following people:
- the person they are applying to be a deputy for
- at least 3 people named in the application as having an interest, for example the person’s relatives, social worker or doctor
The proposed deputy must visit you and tell you:
- who’s applying to be your deputy
- that your ability to make decisions is being questioned
- what having a deputy would mean for you
- where to get advice if you want to discuss the application
During the visit your proposed deputy would provide you with:
- a completed notice about proceedings (COP14)
- an acknowledgment form (COP5)
- any other documents related to your application
They must also:
Tell 3 people named on the application that it has been issued.
Send them:
- a notice that an application form has been issued (COP15)
- an acknowledgment form (COP5)
- any other documents related to your application
They can be notified:
- by post to their home address
- by email
- in person
Within 7 days of serving the documents, they must download and fill in the relevant forms (sometimes called ‘certificates’) confirming they have told:
- the person they are applying to be deputy for – fill in a certificate of notification (COP20A)
- the other people named in the application – fill in a certificate of service (COP20B)
What happens next
The Court of Protection will then review the application and tell your proposed deputy if:
- your application has been approved or rejected
- you’ll need to pay a fee to set up a security bond before you can be appointed
- you have to provide more information to support your application, for example a report from social services
- it’s going to hold a hearing to get more information, for example if someone objected
What happens if a hearing is needed
A notice date will be provided to your proposed deputy. Your deputy must then visit you and tell you about the hearing. This must be done within 14 days of getting the notice and at least 14 days before the date of the hearing. Your proposed deputy will need to complete a COP14 form which gives notice about the proceedings. When the proposed deputy has complied with the notification a COP20A will need to be submitted to the Office of the Public Guardian.
Fees
The court application fee is currently £408 per type of deputyship therefore it would be £816 in total for both types of deputyships. This is a considerable difference to £82 or £164 if you wanted one or both Lasting Powers of Attorney.
This fee would be payable when making the application and does not include any costs which would be incurred if you were to require assistance form a legal professional.
Once the fee and applications and all the above has been complied with the Office of the Public Guardian will consider the application and make a decision on if the proposed deputy should be appointed. This can take some time.
As you can see this process is very long, confusing and expensive. Despite this, it is achievable if needed. Buy they best way to avoid having to go through this process would be get a Lasting Power of Attorney in place now while you can.
Our team at Baines Bagguley Penhale have the relevant expertise and experience, to provide you with appropriate advice.
For further information please visit our website at www.bbpsolicitors.co.uk. Or contact us for further information on 01524 401010.
Court is the final option?
In the past, there were always opportunities for alternative conflict settlement, which is now known as non-court dispute resolution, or “NCDR,” outside of court procedures.
There is now, however, a significantly higher expectation that parties should actively engage in NCDR throughout the length of proceedings under new process rules that went into effect last month, with potential financial repercussions if they do not. The range of non-confrontational dispute resolution (NCDR) options can result in a far less contentious and expensive conclusion than relying on lengthy divorce court proceedings, which can have a significant emotional toll on the parties involved. However, the court is a blunt instrument and, in certain cases, is the only viable option for determining a fair result.
With the intention of promoting early settlement of private law child and financial remedy procedures in the hopes of more peaceful results for families and lessening the load now placed on the family courts, new family process rules have been in effect since April 29, 2024.
But in practical terms, what does this imply, and how does it affect your case?
NCDR: What is it?
The term “methods of resolving a dispute other than through the court process,” which includes but is not limited to mediation, arbitration, assessment by an impartial third party (such as a private Financial Dispute Resolution procedure), and collaborative law, has been expanded to include those new provisions. The purpose of the intentionally incomplete list is to allow for the future addition of additional NCDR techniques.
The court may even delay a hearing without your approval in order to provide you a chance to participate in NCDR under the new regulations, which give it the authority to instruct the parties to do so when scheduling your case. Throughout the process, NCDR should be actively taken into consideration and should never leave your thoughts.
It will be necessary for parties to fill out a court document verifying whether or not they have participated in NCDR prior to each hearing. The parties must explain to the court why they are now requesting a court order if they show up in court even if they have participated in NCDR.
Does my court application enough with the preliminary Mediation and Information Assessment Meeting (‘MIAM’) that I had to attend?
Not nearly… In actuality, the exclusions meant that parties frequently avoided attending MIAMs, even though the procedure is intended to determine if a case was appropriate for mediation in particular. It is now much more difficult to avoid thinking about whether mediation is the right course of action in your situation because the exclusions are now much more limited.
The new regulations provide that, unless there are exclusions, a party’s failure to participate in NCDR or attend an MIAM shall be taken into consideration for assessing costs orders, particularly in financial remedy situations. As a result, MIAMs will become much harder to avoid, and failing to attend an MIAM or participate in NCDR without a valid excuse will give the court sufficient grounds to think about awarding costs to the party that participates in NCDR minimally or not at all.
The revisions require MIAM providers to inform participants of the possible advantages of NCDR, as well as the best type of NCDR and how to use it. The revisions will also provide the court the chance to decide whether an earlier, legitimate MIAM exemption still applies.
What benefits does NCDR offer over the legal system?
NCDR is known for helping people settle problems in a less confrontational, speedier, and frequently more economical manner. Moreover, NCDR gives you more influence over the procedure as opposed to having the court force a solution on you.
The links to alternatives to litigation, additional information, and commonly asked questions are provided below so you can see whether any of them might be a good fit for you.
Our Team at Baines Bagguley Penhale are qualified to conduct MIAMs (Mediation Information and Assessment Meetings) and offer substantive mediation (with regard to financial and/or child-related concerns). Get in touch with us today.
Issues that can arise with DIY Wills
There is an increase in the availability of precedent and template documents, which allow someone to make a Will themselves without taking any professional legal advice. Although these documents can appear to be more convenient and less expensive. As well as setting out your wishes and making things easier for your family, it can give arise to many issues. This could lead to extra costs for the estate. Also it is more stress for family members when administering the estate. Also this can make the process of grieving more difficult.
One of the most common mistakes with a DIY Will, is that the Will has not been executed correctly. There are set legal rules about the completion of a Will. If a Will has not been correctly executed, then it will not be a valid Will. In the event that the Will is not valid, there are two options. If there is a valid Will made before which would need to be followed to administer the estate. Or, if there is no Will then the estate would be distributed under the Rules of Intestacy.
For a Will to be valid, the Will has to be signed by the person making the Will. This person is called the Testator or Testatrix in the presence of two witnesses. Everyone must remain together throughout the whole signing process, and this has to be done in person. The witnesses must then sign the Will in the presence of the person making the Will and each witness. The witnesses should also include their details which are their name, address, and occupation on the Will under their signature. Also, the Will must be dated on the day that it is signed by the testator/testatrix and witnesses.
Another common issue is that there are no executors appointed on the Will document. An executor is the person or people who are responsible for the administering the estate. They have a responsibility to safeguard the assets, collect in the monies, pay off liabilities and distribute the estate. If there is no executor appointed in a Will, this does not invalid the Will. But there would have to an administrator appointed to deal with the estate. There are set list of people under the non-contentious probate rules who can be appointed as administrator. This may mean that the person or people that you believe to be most suitable to act in this role, may not be able to act.
Furthermore, another issue with a DIY Will is that there is usually no set wording. So, people can write their wishes in their own words. Although this could be seen as an advantage, the issue would be that the wording used could be misinterpreted. Then the wishes may not be followed as original intended. Whereas if a solicitor drafted your Will, they would ensure that all clauses are set out correctly. Also ensure that your wishes are clear to everyone that reads the Will.
So, the advantages of instructing a solicitor to assist you with the making and completion of a Will are:
- You can ensure that all the formalities for the completion of the Will are dealt with correctly.
- They will discuss all the clauses that you should include in your Will.
- They can consider with you on any issues that you are concerned about. Also, provide you with options for your Will.
- They will discuss inheritance tax planning.
- You will have peace of mind that your Will is valid and sets out your wishes clearly.
Our team at Baines Bagguley Penhale have the relevant expertise and experience, to provide you with appropriate advice.
For further information please visit our website at www.bbpsolicitors.co.uk. Or contact us for further information on 01524 401010.
A Lasting Power of Attorney
Ensuring Your Wishes are Honored
In UK, Lasting Power of Attorney (LPA) is very important legal paper that lets you choose someone to make choices for you if one day you cannot do it yourself. This document makes sure what you want happens & keeps your well-being safe, even when cannot talk or decide things on own anymore.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal paper that lets someone you trust to decide things for you. There are two kinds of LPA: one kind is for health & welfare choices, & the other kind is for property & money matters. By making an LPA, you let someone decide things for your care, medical treatment, & money matters. This way, what you want is followed and what’s best for you is taken care of.
The Importance of Creating an LPA
Making a Lasting Power of Attorney (LPA) is very important for anyone who wants to make sure their wishes are respected and their needs taken care of. If you do not have an LPA, choices about your health, medical treatments, & money could be made by someone who doesn’t know you well or may not think about what is best for you. By choosing someone you trust to decide for you, you can make sure your wishes are followed and your best interests are protected, even if you cannot talk or choose for yourself.
How to Create an LPA
Making a Lasting Power of Attorney is not very difficult, but getting legal advice is important to make sure the document works properly & follows the law. To set up an LPA, you must pick someone you trust to be your attorney, fill out required forms, & register the LPA with Office of Public Guardian. It is very important to think carefully about who you choose as your lawyer & to talk with them about what you want before making the LPA.
Choosing Your Solicitor
When you make a Lasting Power of Attorney, it is very important to pick someone you trust as your attorney. This person will have the authority to decide things for you, so choosing somebody who knows you well & understands what you want is key. They should also be willing & able to act in your best interests always.
Registering Your LPA
After you make your Lasting Power of Attorney, it very important to register paper with Office of the Public Guardian. This makes sure that LPA is legal and that your attorney has power to decide things for you. It be important to keep copy of your LPA in safe place. Also, you should tell attorney, family members, & healthcare providers that it exists.
Updating Your LPA
It is good to check and update your Lasting Power of Attorney often so it always shows what you want. Things in life can change, so looking at your LPA now and then helps keep everything correct. If needed, make changes or updates to match any new wishes or situations. If you want to change your LPA, it is important that you talk to a lawyer so the document stays valid & lawful.
Conclusion
Making a Lasting Power of Attorney is very important to make sure your wishes are followed & that someone protects what is best for you. By choosing a trusted person who can decide things for you, it helps ensure that people will respect what you want & take care of your needs even if you cannot speak or decide by yourself anymore. If you do not have an LPA yet, it is very important to talk with a legal expert & take the right steps to make this important paper.
Your future self will be grateful that you made sure your wishes are respected & your best interests are kept safe.
Preparing for the future with a Lasting Power of Attorney is the best way to ensure that decisions are taken on your behalf by someone who you are confident will act in your best interests.
For further information or to discuss whether an lasting power of attorney is relevant to your current circumstances please contact us.
Five surprising facts about divorce
Divorce is a life-altering event that impacts individuals and families in profound ways. In the United Kingdom, the dissolution of a marriage involves a complex process that extends beyond the emotional toll it takes on those involved. While divorce is a common occurrence, there are several surprising elements associated with it in the UK that often go unnoticed. Here are five unexpected aspects of divorce in the UK that shed light on this intricate legal and personal journey.
### 1. The Rise of ‘DIY’ Divorces The traditional perception of divorce involves lengthy court battles and significant legal expenses. However, one surprising trend in the UK is the growing popularity of ‘DIY’ or online divorces. Couples are seeking more affordable and efficient ways to end their marriages. Online platforms have gained popularity to help you navigate the process. These can work for many people.
### 2. ‘No-Fault’ Divorce Law Reforms The UK used to operate a system that required couples to prove fault to avoid a lengthy separation period when getting divorced. A significant change came into effect in 2021 with the introduction of ‘no-fault’ divorce laws. Now couples can file for divorce without placing blame on one party. This makes the process less acrimonious and more focused on amicable separation.
### 3. The Impact of COVID-19 on Divorce Rates The COVID-19 pandemic has influenced various aspects of life, including relationships. Surprisingly, during the pandemic, divorce rates fluctuated in unexpected ways. There was speculation that lockdowns and increased time spent together might lead to a surge in divorce filings. However, data revealed a mixed picture, with some periods showing a decline in divorce rates, possibly due to limited access to legal services and court closures. This was then followed by a surge as restrictions lifted.
### 4. Financial Implications and the Division of Assets In the UK there can be an intricate process of dividing assets and finances. While the principle of an equal split is generally favored, the reality is far more complex. The length of the marriage, contributions made by each party, and the needs of any children often complicate matters. Sometimes, assets that may not have been initially considered, such as inheritances or business interests, can also come into play. This is where an expert truly helps.
### 5. The Emotional Toll on Children and Alternative Solutions Divorce also impacts children. It’s vital to minimise the effect on them. Using mediation or collaborative law can help minimise conflict – great for all parties. If mediation doesn’t work there are support services, tailored to help children of divorcing parents.
CONCLUSION. In conclusion, divorce in the UK encompasses surprising elements that extend beyond the legal process. If you need expert help and advice with your family matters, speak to the team at BBP Legal in confidence. We are your legal experts.
COVID-19 Child Arrangements for Separated Families
The Covid-19 Pandemic and resulting Lockdown has meant that we have all had to change our arrangements to keep in touch with family members since the “Staying At Home” announcement by the Prime Minister on 23rd March 2020
Many separated families found this particularly challenging as they tried to maintain stability for children and minimise the anxieties we have all had about keeping within the rules and staying safe whilst taking into account everyone’s varying attitudes to risk.
Have a look at this advice from the specialist family lawyers at Baines Bagguley Penhale Solicitors for families in this situation:
The Rules
After some initial confusion, it was confirmed that the rules allow for children under 18 whose parents do not live in the same household to move between their parent’s homes. This is an exception to the rules and it does not mean that the children must travel.
Even where there is a court order in force, where parents agree that the arrangements in the order should be temporarily varied they are free to do so. It is sensible to record such an agreement in a note, email or text message sent to each other to avoid misunderstandings.
Routine
Most children’s day to day routines have been significantly affected by the global pandemic and children are anxious about their family’s health and the future. They may have spent more time than usual with one parent home schooling or spent more time with a parent who has been working from home.
When the rules change, use this as an opportunity to review the arrangements and look at what has worked well for your children.
Try to maintain a sense of routine even when face to face visits are not possible by using video facilities like FaceTime to keep in touch or making and sending video messages.
Co-Parenting Online Resources
There are some great resources available at https://www.cafcass.gov.uk/grown-ups/parents-and-carers/resources-parents-carers. Cafcass stands for Children and Family Court Advisory and Support Service and their website includes a Parenting Plan that you can download and save. There is an online version at www.cafcass.clickrelationships.org
A Parenting Plan is a written plan covering practical parenting issues that can help separated parents identify their expectations of each other as parents and record agreements reached. Parenting Plans are particularly helpful to refer to as circumstances change and arrangements are reviewed.
Resolving Issues
If there are issues that you are not able to resolve between you then consider using mediation or other forms of dispute resolution before applying to the court. You can contact a mediator and find out more about mediation before deciding whether it is right for you. In our experience, mediation, which is now taking place remotely by video, can give both parents an opportunity to listen to each other’s concerns and the reasons for differences of opinion which will help you address and resolve those issues.
A specialist family lawyer can support you whilst you are attending mediation and, if appropriate, attend mediation itself to support and advise you and help with the negotiations. They can also advise you on other forms of dispute resolution as well as advise you whether, as a last resort, to apply to the court or to arbitration for a decision to be made. The court are dealing with as many hearings as possible remotely, e.g. by telephone or video, but where necessary the court buildings are open and, if the judge agrees, you can attend court and speak to the judge in person.
Contact the Baines Bagguley Penhale Family Law team, solicitors Barbara Richardson and Nicola Codd, who can guide you through the options available to you and provide you with professional support and understanding to help you achieve a constructive resolution of issues in these challenging times.
Pensions on Divorce in 2021 – FAQ
When separated couples divorce, before they can reach a legally binding agreement about the resolution of financial issues or when a court application is made for financial orders, they both have to provide details of their pensions.
This is a specialist area and we recommend that you seek the advice of an experienced family lawyer and independent financial adviser before making an application to the court or signing an agreement.
Q: Can we agree that we each keep our pensions?
A: Provided you make each other aware of your pension values then you can reach a legally binding agreement that you each keep your pensions. However, if there is a significant difference in the values then the court can refuse to approve an agreed financial order where pensions are not being shared or taken into account in the division of other assets.
When you apply for the order the court requires a completed statement signed by both spouses/civil partners which includes the transfer values of pensions. This means that you are required to obtain that information about your pension and your spouse needs to be made aware of that information. If you have retired and are receiving pension benefits the pension scheme are entitled to charge to provide this information and so it is advisable to speak to a specialist family lawyer to see whether this can be avoided before incurring this cost.
Pensions are complex valuable assets and even where the scheme’s values are similar the pension benefits can be significantly different. This is an important decision that can have a serious effect on your financial future and so we strongly recommend that you obtain specialist advice before making this decision.
Q: Is my pension valuation likely to change due to the economic effect of the pandemic?
A: Pension experts (actuaries) are continuing to complete independent reports for court purposes on the values of pensions.
The current view is that the most immediate changes to valuations in pensions are likely to be for Defined Contribution/Money purchase pensions (e.g. personal pensions, stakeholder pensions and SIPP’s).
Employer’s Defined Benefit Pension Schemes valuations are also likely to change because the assets that support the scheme are likely to have fallen in value and it is becoming more expensive for these pension schemes to secure the income that must be paid out.
Public Sector Defined Benefit Pension Schemes may change in the longer term but these pension values are not likely to change in the near future.
Q: A Pension Sharing Order has been made and I am worried that it won’t be fair – what can I do?
A: The biggest concern likely to arise is whether the transfer value of the pension being shared reduces so that the benefits received are lower than the anticipated benefits. If one former spouse/civil partner is significantly disadvantaged as a result, then it may be possible to ask the court to change the terms of the order. Please note that this is a difficult issue upon which you should seek expert legal advice.
These are not straightforward issues and so we strongly recommend that you seek advice from our experienced family lawyers before taking any action.
Our specialist family lawyers, Barbara Richardson and Nicola Codd, are available to help and are contactable on our office telephone number, by email and on Microsoft Teams, Skype and, when tier rules allow, at our Morecambe office for face to face meetings.
AMICABLE DIVORCE – A REALITY AT LAST
On the 6th April 2022 a new law is due to come into effect which will remove the need for divorcing couples to apportion blame in order to obtain a divorce.
The current position is that in order to obtain a divorce you must use one of five reasons to prove to the court that your marriage has irretrievably broken down. The five facts that may be stated are unreasonable behaviour, adultery, five years separation, two years separation with consent or desertion.
Therefore, most couples who agree that a marriage is over and that they wish to start a divorce, must either wait two years so that they can agree a separation with consent, or blame one of the parties either for behaving so unreasonably that they can no longer remain married, or for committing adultery.
In reality a lot of couples do agree that a marriage is over and wish to begin divorce proceedings before two years separation has passed. BBP Solicitors, along with other Resolution accredited solicitors, have sought to lessen the impact of this requirement to blame one party to the marriage by seeking to agree the terms that are stated in that Divorce Petition wherever possible.
In practical terms, however, the fact that one party to a marriage needs to set out reasons as to why the other has behaved unreasonably in order to obtain a divorce necessarily has an impact on the willingness of both parties to discuss and agree the further issues that arise from a relationship breakdown. In particular by laying the blame at one party’s door further conversations in relation to arrangements for children and how the finances can be divided can be tainted by this initial statement that someone was at fault.
By removing that element of fault, and allowing a divorce application to be made merely on the basis that the marriage has ended, dealing with the other aspects of a separation can become the focus of discussion and if necessary with solicitor assistance. The new law should avoid time and expense in attempting to agree a Divorce Petition which contains enough information to allow a divorce to be approved, and reduce emotional distress.
Additionally, the new divorce law will enable a joint application to be made. So rather than one party having to bear all costs and the additional steps to start the divorce proceedings, both parties to the marriage can agree the marriage is over and make a joint application for a divorce.
It is hoped that this important change to the divorce law will help to remove some of the complexity and legal jargon surrounding divorce proceedings.
At Baines Bagguley Penhale we have always focused on assisting our clients to address the issues that arise when a relationship comes to an end in an amicable and constructive way wherever possible. Hopefully, the new law will make this easier for everyone involved in a breakdown in their relationship.
For advice in relation to commencing divorce proceedings or any other issue that arises out of separation please contact us on 01524 401010.
